DEFINITION AND MEANING OF TORTS

“Tort” is derived from the French word “tortus” which means “twisted”, “wrong” or “crooked”.
Torts are wrongs of a civil nature.
A tort is a civil wrong that can be remedied by awarding damages (other remedies may also be
available). These civil wrongs result in harm to a person or property that forms the basis of a
claim by the injured party. The harm can be physical, emotional.
Examples of torts include; trespass, negligence, nuisance, defamation, occupiers’ liability,
vicarious liability and strict liability.
A tort arises from the breach of a duty that is imposed or fixed by law and it imposes an
obligation upon a person that arises from a legal requirement. The law of tort requires an
observation of the obligation.
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Negligence is the omission to do something which a reasonable man guided upon those
regulations which ordinarily regulate the conduct of human affairs would do or do something
which a reasonable and prudent man would not have done.
Elements of Negligence
The tort of negligence consists of three elements which a plaintiff must prove in any action
based on negligence.
1. Legal duty of care
2. Breach of duty
3. Loss or damage

1. Legal Duty of Care

The plaintiff must prove that the defendant owed him a duty of care in the circumstances. The
circumstances must have been such that the defendant knew or ought to have known that acting
negligently would injure the plaintiff.
For example, a road user owes other users a legal duty of care; a manufacturer of products owes
legal duty of care to consumers.
Who owes another a legal duty of care?
As a general rule every person owes his neighbour a legal duty of care.
The neighbour principle was pronounced by Lord Atkin in his ruling in the case of Donoghue
v Stevenson … “the law that you are to love your neighbour becomes in law that you must not
injure your neighbour” Lord Atkin delivered a judgement that would have a lasting impact
on society, as his decision would forever establish that a manufacturer of a product owed
a customer a duty of care.
LORD ATKIN: ‘...a manufacturer of products, which he sells in such a form as to show
that he intends them to reach the ultimate consumer in the form in which they left him
with no reasonable possibility of intermediate examination, and with the knowledge that
the absence of reasonable care in the preparation or putting up of the products will result
in an injury to the consumer's life or property, owes a duty to the consumer to take that
reasonable care.’
the House of Lords held that a manufacturer owed a duty of care to the ultimate consumer
of the product.
A person owes a duty of care to his neighbours. This is the so-called neighbour principal. You
must take reasonable care to avoid acts or omissions which you can reasonably foresee would
likely to injure your neighbour.
Who then in law is my neighbour?
Persons who are so closely and directly affected by my acts that I ought to reasonably have
them in contention as being so affected when am directing my mind to the Acts or omissions
which are called into question.
Whether a person owes another a duty of care will depend on whether such a person could
reasonably have foreseen injuring the other.
Standard of care
As a general rule the standard of care expected of the defendant is that of a reasonable man.
This a man of reasonable prudence (carefulness). This is a person who has minimum
information and knowledge necessary to act reasonably in any situation. Where professionals
and experts are involved the standard of care is that of a reasonably competent professional.
2. Breach of Duty f legal duty of care
The plaintiff must prove that the defendant acted negligently thereby breaching his legal duty
of care. The plaintiff must prove specific acts or omissions on the part of the defendant.
However, in certain circumstances negligence is proved without evidence. The cases are
referred to as Res ipsa Loquitor which means that thing or facts speak for themselves. As a
general rule, the burden of proving negligence lies with the plaintiff. He must prove that the
defendant owed him a duty of care, the defendant has breached that duty and that he has
suffered damage.
Res ipsa is a rule of evidence and not of law. It merely assists the plaintiff in proving negligence
against the defendant.
Conditions/Requirements of Res Ipsa Loquitor
Before it can be relied upon, three conditions must be satisfied, namely;
(i) The instrument or object inflicting the injury must have been under the control of the
defendant or his servants or his agents.
(ii) The event must be such that it could not have happened without negligence.
(iii)There must be no evidence or explanation as to why or how the event occurred, as the
accident is such as in the ordinary course of things does not happen if those who have
the duty use proper care.
In Bryne v Boadle
In Scott v London and St. Catherine’s Dock
Effects of Res Ipsa
 a) It provides prima facie evidence of negligence on the part of the defendant.
b) It shifts the burden of proof from the plaintiff to the defendant.

3. Loss/ Damage
For the plaintiff to succeed in claim of Negligence, he must prove that he suffered harm, loss
or prejudice, unless this is presumed as in the case of injuria sine damnum (injury without legal
damage). This means an infringement of an absolute private right without any actual loss or
damage. Whenever there is an invasion of legal right, the person in whom the right is vested is
entitled to bring an action and may recover damages, although he has suffered no actual [Link]
such a case, the person need not prove the actual damage caused to him. Read the case of
Ashby v White 1703
The defendant is reasonably liable for any loss which is reasonably foreseeable from his acts
or omissions. This was held in the case of The Wagon Mound II
Questions have arisen as to what losses the defendant must have foreseen and courts have taken
the view that as long as some loss is foreseeable the defendant is liable for any loss. See the
case of Bradford v Robinsons Rental Co. Ltd
Defences to Negligence
1. Contributory Negligence
This defence is available in circumstances in which the plaintiff is also to blame for the loss or
injury. The defendant must prove that;
✓ The plaintiff exposed himself to danger.
✓ The plaintiff was at fault or negligent.
✓ The plaintiff’s fault or negligence contributed to his suffering.
The effect of this contribution is that it reduces the amount of damages recoverable by the
plaintiff by the extent of his contribution. Liability is apportioned between the parties.
Contributory negligence does not apply in case of children and they can recover full damages
even in the case of their contributory negligence.
2. Voluntary Assumption of risk (volenti non fit injuria)
This defence is available in circumstances where the plaintiff with full knowledge of the risk
voluntarily agrees to undertake the same. The defendant must prove;
✓ That the plaintiff had actual knowledge of nature and extent of the risk.
✓ That the plaintiff agreed to incur the risk voluntarily.
Dann v Hamilton
Tugwell v Bunnet
3. Statutory Authority
The defendant must prove in this defence that he acted in accordance with the provisions of the
Act.
If the conduct complained of by the plaintiff is authorized by statute and the defendant has
acted in accordance with the provision of the statute, the defendant has a complete defence to
the plaintiff’s action.
However, whether or not the defence is complete defence that depends on the interpretation of
the statute.
DEFAMATION
Defamation is the publication of a statement which reflects on a person’s reputation and tends
to lower him in the estimation of right-thinking members of the society generally or tends to
make them shun or avoid him.
Defamation is something defined simply as the publication of a statement which tends to bring
a person “into hatred, contempt or ridicule”; but this is not quite exact for a statement may
possibly be defamatory even if it does not excite in reasonable people feelings quite so strong
as hatred, contempt or ridicule and the definition is defective in omitting any reference to the
alternative of tending to shun or avoid him.
Essentials of Defamation
The following essentials of defamation must be proved by the plaintiff;
i. The words must be defamatory
ii. They must refer to the plaintiff
iii. They must be maliciously published

(i) The Words must be Defamatory

A defamatory statement is one which has a tendency to injure the reputation of the person to
which it refers. The statement is judged by the standards of the ordinary right-thinking members
of the society and the test is an objective one.
It is no defence to say that the statement was not intended to be defamatory, a tendency to
injure or lower the reputation of the plaintiff is enough and a statement may be defamatory
although no one to whom it is published believes it to be true.
Abuse
Mere insult or vulgar abuse does not amount to defamation. The manner in which the words
were spoken and the meaning attributed to them by the hearers is however important in
determining whether the words are defamatory. In Penfold v West Cote (1806)
The speaker of words must thus take the risk of his hearers construing them as defamatory and
not simply abusive and the burden is upon him to show that a reasonable man would not have
understood them as defamatory.
Interpretation
In interpreting a defamatory statement, the meaning attached to it is not necessarily the meaning
with which the defendant published it but that which is or may be reasonably given by the
person to whom it is published.
The fact that the defendant did not intend to lower the reputation of the plaintiff is immaterial.
So long as the statement has a defamatory meaning to those whom he makes it. On the other
hand, a defamatory purpose will not render the defendant liable if the statement has no
defamatory significance to those it is published.
A statement is prima facie defamatory when its natural, obvious and primary meaning is
defamatory. Such a statement is actionable unless its defamatory significance is explained away
successfully. The burden of such an explanation rest upon the defendant.
Innuendo
The words which the plaintiff complains may be defamatory in the light of facts and
circumstances known to persons to whom they were published. An innuendo may thus make
words, which are not otherwise defamatory in the natural and ordinary meaning, to be
defamatory. The burden is on the plaintiff to prove the meaning, which he understood by
persons having knowledge of particular facts.
In Tolley v Fry and Sons Ltd (1931)
Knowledge of the innuendo by the defendant is immaterial and the defendant is nevertheless
liable for a statement he believes to be innocent but it is in fact defamatory by reason of facts
unknown to him but known to the persons to whom he makes it.
In Cassidy v Daily Mirror Newspaper Ltd (1929)
(ii) The Words must Refer to Plaintiff
The defamatory statement must be shown to refer to the plaintiff. A court has power to dismiss
an action on the ground that no reasonable person could conclude that the plaintiff should be
identified with the person mentioned in the statement complained as a defamatory.
If the plaintiff is mentioned by name, there is usually no difficulty. It is however sufficient in
such a case the statement was understood, even by one person, to refer to the plaintiff, even
though it remained hidden to all others.
The question is not whether the defendant intended to refer to the plaintiff but is whether any
person to whom the statement was published might reasonably think that the plaintiff was
referred to. In Hulton v Jones (1910)
In Newstead v. London Express Newspapers Ltd
Defamation of a Class
A problem arises where a defamatory statement referred to a class to which the plaintiff
belongs. The test is the same i.e would a sensible ordinary person identify the plaintiff as the
person defamed? In Eastwood v Homes
The question of whether an individual can sue in respect of words, which are directed against
a group or body or class of persons generally, was considered by the House of Lords in
Knuppfer v London Express Newspaper Ltd (1944) and the law may also be summarized as
follows:
1. The question is whether the words are published ‘of the plaintiff’ in the sense that he
can be said to be personally pointed at
2. Normally where the defamatory statements are directed to a class of people no
individual belonging to the class is entitled to say that words were spoken of him. As
per Lord Porter, ‘no doubt it is true to say that a class cannot be defamed as a class, nor
can an individual be defamed by a general reference to the class to which he belongs’.
 3. Words which appear to apply to a class may be actionable if there is something in the
words or the circumstances under which they were published which indicates a
particular plaintiff or plaintiffs.
4. If the reference is to a limited class or group e.g trustees, members of a firm, tenants of
a particular building etc so that the words can be said to refer to each member, all will
be able to sue.
5. Whether there is any evidence on which the words can be regarded as capable of
referring to the plaintiff is a question of law for the judge. If there is such evidence then
it is a question of fact whether the words lead reasonable people who know the plaintiff
to the conclusion that they do refer to him.
Anson v Stuart
(iii) The Words must be Maliciously Published
Publication is communication of words to at least one person other than the person defamed.
Communication to the plaintiff himself is not enough for defamation to constitute injury to
one’s reputation and reputation is what other people think of a man, not his own opinion of
himself.
Communication between spouses about a third party is not publication. This is explained by
the fiction of unity between husband and wife. A communication by a third party to one spouse
about the other is however publication.
By dictating a defamatory letter to his secretary, an employer commits slander. If the secretary
reads it back to him or hands over the typed copy, she is not making fresh publication.
A statement not heard by the recipient because he is deaf or he does not understand the language
is not threatened as having been published nor is a person liable if a 3rd party on his own
initiative hears or sees the defamatory matter.
However, he will be liable for the statement which he intended a 3rd party to know or should
have foreseen might come to his attention.
Huth v Huth
The burden of proof of publication is on the plaintiff but in many circumstances this burden is
easened by certain rebuttable presumption of fact e.g open postcard or a telegram message is
deemed to have been published to those who would, in the ordinary course of transmission,
normally see it. Spoken words are deemed to have been published to people within earshot.
Repetition of a Statement
One who repeats a defamatory statement made by another person is liable for the repetition and
this constitutes a fresh publication even though the person does not know that the statement is
defamatory.
However, the original maker of the statement is liable for such re-publication if he has
authorized it or if it seems reasonably foreseeable.
Eglantine Inn v Smith
Vizentally v Mudle’s Select library Ltd
The tort of defamation is of 2 kinds:
1. Libel
2. Slander
Differences between Slander and Libel
Libel the defamatory statement is made in some permanent form such as writing , printing
and pictures.
Slander the statement is made in spoken words or in some other transient form whether visible
or audible such as gestures or inarticulate but significant sounds.
It has been stated that slander is addressed to the ear while libel is addressed to the eye. This
distinction is however not accurate because slander can be addressed to the eye as in the case
of defamatory gestures whereas libel can addressed to the ear as in the case of Youssoupoff v
M.G.M Picture Ltd where Slesser L.J stated that: “There can be no doubt that so far as the
photographic part of the exhibition is concerned, that is a permanent matter to be seen by the
eye, and is proper subject of an action eye, and is the proper subject of an action for libel”.
Thus the ‘talking’ film, though generally addressed to the ear, was in permanent form thus
making it a libel.
1. Libel is defamation in permanent form whereas Slander is defamation in transient form.
2. Libel is not merely actionable per se but slander is a civil wrong only.
3. All cases of libel are actionable per se but Slander is only actionable on proof of actual
damage with 4 exceptions under the Defamation Act, which are actionable per se.
Cases of Slander that are Actionable per se
[Link] of a criminal offence
Where the defendant makes a statement, which imputes a criminal offence punishable with
imprisonment under the Penal Code, then such Slander will be actionable per se. There must
be a direct imputation of the offence and not merely a suspicion of it and the offence must be
punishable by imprisonment in the first instance. If slander goes into details of the offence, it
is not actionable per se if the details are inconsistent with another.
2. Imputation of a contagious or infectious disease
This is actionable per se it is likely to make other people to shun associating with the plaintiff.
This exception always includes sexually transmitted diseases and in olden times the diseases
of plague and leprosy.
3. Imputation of unfitness, dishonesty or incompetence in any office, profession, calling, trade
or business held or carried on by the plaintiff at the time when the Slander was published
This is the most important exception under Defamation Act section 2 provides
4. Imputation of unchastity of any woman or girl
Words spoken and published which impute unchastity or adultery to any woman or girl shall
require proof of special damage to render them in actionable.
Read Section 4 of Defamation Act.
In Kerr v Kennedy. The court was of the opinion that the term “unchastity” includes lesbianism.
DEFENCES OF DEFAMATION
1. Unintentional Defamation
Under common law, the fact that the maker of a statement was unaware of the circumstances
making it defamatory did not absolve him from liability. The defamation Act seeks to redress
this situation by enabling the defendant to make an “offer of amends” for the innocent
defamation. (section 13)
Read Section 13 of Defamation Act.
Under the Act, words shall be treated as innocently published in relation to another person if
and only if:
1) The publisher did not intend to publish them of and concerning that other person, and
did not know of circumstances by virtue of which they might be understood to refer to
him; or
2) The words were not defamatory on the face of them, and the publisher did not know of
circumstances by virtue of which they might be understood to be defamatory of that
person, in either case, the publisher has exercised all necessary care in relation to the
publication.
The Defamation Act provides further that an offer;
a) In any case to publish or join in the publication a suitable correction and apology;
b) Where copies of a document or record containing the words have been distributed by
or with the knowledge of the person making the offer, to take such steps as are
reasonably practicable on his part to notifying persons to whom copies have been so
distributed that the words are alleged to be defamatory of the party aggrieved.
If the offer of amends is acceptable by the party aggrieved, and duly performed, no proceedings
for Libel or Slander may be taken or continued by that party making the offer in respect of the
publication in question.
If the offer of amends is not accepted by the party aggrieved, then it is a defence in any
proceedings by him for the Libel or Slander to prove that:
a) The words were published innocently in relation to the plaintiff
b) The offer was made as soon as it practicable after the defendant received notice that they
were or might be defamatory to the plaintiff; and
c) The words were published without malice.
2. Consent and assumption of risk
If the plaintiff expressly or impliedly assents to the publication of the matter which is true on
the face of it, the defendant is not liable; and this is so even if it appears that some persons may
interpret the statement in a sense much more prejudicial to the plaintiff that is warranted by the
plain meaning of the words.
In Cookson v. Harewood, Scrutton L.J said
 “If you get a true statement and an authority to publish the true statement, it does not
matter in the least what people will understand it to mean.”
The defence of consent has been regarded as an instance of voluntary assumption of risk
(volenti non fit injuria). This defence was upheld in Chapman v. Elsemele where the plaintiff
by being a member of the Jockey Club was deemed to have consented to publication of a report
in the Jockeys Journal.
3. Justification or truth
The plaintiff does not have to prove that the statement complained of was false. On the contrary
the burden is on the defendant to prove that the statement was true.
Truth is a defence because the law will not permit a person to recover damages in respect of
any injury to a character, which he either does not have or ought not to possess. The defendant
must establish the truth of the precise charge that has been made which is ultimately a matter
of interpretation of the facts.
In Wakley v. Cooke, the defendant called the plaintiff a ‘Libelous Journalist.’ He proved that
the plaintiff had been found liable for Libel once. The court took the view that these words did
not mean that the plaintiff was held liable on one occasion but mean that the Journalist
habitually libelled people. The defence of truth accordingly failed.
The defendant must justify the statement by showing that it was substantially accurate. The
standard of proof for jurisdiction is the normal civil one of balance of probabilities, but as is
other civil cases, the seriousness of the defendant’s allegation may be taken into account in
determining whether he has discharged that burden.
The defence will not fail if the truth of several charges is not established provided that having
regard of the truth of the remaining charges, the charge not proved does not materially injure
the plaintiff’s reputation.
In Alexander v. North Eastern Railway, the defendant published a statement that the plaintiff
had been sentenced to a fine of 1 to 3 weeks imprisonment. They justified this by proving that
he had actually been sentenced to a fine of 1 or 2 weeks imprisonment. The statement was held
to be substantially true.
One difference between the defence of justification and the defences of fair comment and
qualified privilege is that even malice on the part of the defendants does not deprive him of the
defence of justification.
The defence of justification is a dangerous defence if the defendant fails to prove the truth of
the statement, he has made he may end up paying aggravated damages as insisting that a
statement is true without proving amounts of fresh publication hence fresh defamation.
In Broadway Approvals Ltd v. Odhams press Ltd, per Davis L.J; “A plea of justifications
should not, of course be made unless the defendant has evidence of the truth of the statement.”
Read Section 14 of Defamation Act.
4. Fair Comment
This defence stems from the belief that honest and fair criticism is indispensable in every
freedom loving society. The law weighs the interest of the plaintiff against the freedom of
speech and it is for the judge to rule whether any comment was called for in particular situation
and to say whether the statements are of facts or opinions, and if they are opinions, whether
they are honest and fair.
The Requirements of this Defence are as follows;
a) Public Interest
The matter commented on must be of public interest. In London Artist Ltd v. Litler per Lord
Denning M.R
“Whenever a matter is such as to affect people at large so that they may be legitimately
interested in or concerned at what is going on or what may happen to them or to others
than it is a matter of public interest on which everyone is entitled to make fair
comments. The reference to people at large should not be taken to suggest that if the
statement complained of refers to one person or a few persons, it can never be of public
interest.”
Matters of government, National and Local Management of public and religious institutions,
the conduct of foreign policy and even the behaviour of holders of public office are matters of
public interest.
b) The Comment must be an opinion on true matters
Fair comment is available only in respect of expression of opinion. In fair comment it is not
necessary to prove the truth of the comment, but that the opinion was honestly held. The
defence of fair comment only lies on facts which are proved to be true, and on statements of
facts not proved to be true but which were made on the privileged occasion. The comment itself
need not be true, though. It must be honestly made, but the facts upon which the comment itself
need not be true unless they are privileged. If the facts are untrue, the defendant will not succeed
in fair comment merely by proving that his comment is honestly made.
In Merivale v. Carson, it was held that a defendant who implied that a play was adulterous
could not rely on this as a fair comment where the court found as a fact that adultery was not
dealt with in the play.
Sometimes it is difficult to differentiate a statement of facts and a comment e.g. a statement
that x was drunk last night and his behaviour was disgraceful – such a statement is of opinion.
If X’s behaviour after drinking was in fact disgraceful, then it is a statement of fact. If, however,
the second statement is a statement of opinion, then it is the subject of a fair comment. Every
statement must be taken on its merits. The same words may be a statement of facts or an opinion
depending on the context. To say that “A is a disgrace of human nature” is an allegation of fact.
But to say “Y murdered his father and is therefore a disgrace to human nature,” the latter words
are plainly a comment on the former.
c) The Comment must be fair
The comment must be honest and not actuated by malice. For comment to be fair it must first
be based upon true facts in existence when the comment was made. One cannot invent untrue
facts about another then comment on them. The fair comment may however be based on an
untrue statement which is made by some people upon a privileged occasion e.g., a statement
of a witness in the course of judicial proceedings, and properly attributed to him. The comment
held should however be based on the untrue statement of another person, not the person making
the comment.
In assessing fairness, it is important that the defendant honestly holds is opinion. It is not for
the court to substitute its own judgment as to what is fair.
The test given by Lord Esher M.R. in Merivale v. Carson was:
“Would any fair man, however prejudiced he may be, however exaggerated or obstinate
his views, have said that which this criticism said of the work which is criticized.”
d) Absence of malice
The defence will be defeated by proof of malice, which here means, “evil motive or spite.” In
Thomas v. Bradbury, Agnew & co Ltd, the court of appeal held that a book reviewer for punch
magazine was hostilely motivated against the plaintiff’s books facts which are evident not only
by the review he wrote but also by his behaviour in the witness box. His behaviour displayed
malice which negated the plea of fair comment.
Read section 15
5. Privilege
There are two categories of privilege:
1. Absolute privilege
2. Qualified privilege
1. Absolute privilege
A privileged statement may be defined as one which is made in such circumstances as to
exempt one from the rule that a person attacks the reputation of another at his own risk.
A statement is said to be absolutely privileged when it is of such a nature that no action will lie
for it, however false or defamatory it may be and even though it is made maliciously. The
defence is available in the following cases:
a) Any statement made in the course of and with reference of judicial proceedings by any
judge, jury, party, witness or advocate.
b) Fair and accurate report in any newspaper of proceedings heard before any court.
c) Any statement made in parliament by a member of parliament.
d) Reports, papers, votes and proceedings published by the order and / or under the
authority of the National Assembly.
e) Communication made by one officer of state to another in the course of his official
duty.
f) Communication between an advocate and his client in connection with litigation.
g) Communication between husband and wife.
2. Qualified privilege
It is limited in scope. When an occasion of qualified privilege exists, a person, provided he is
not actuated by malice is entitled to make defamatory statements about another. Like absolute
privilege, here the right freedom of speech prevails over the right of reputation but only to a
limited extent. The statement must be made honestly and without any indirect or improper
motives.
Qualified privilege is thus an intermediate case between absolute privileges but only to a
limited extent. The statement must be made honestly and without any indirect or improper
motives. Qualified privilege is thus an intermediate case between absolute privilege and
absence of privilege.
The general principle is that the statement is protected if it is fairly made by a person in the
discharge of some public or private duty whether legal or moral or in the conduct of his own
affairs in maters where his interest is concerned.
No complete list of such occasion is possible but it is generally agreed that the main instances
are:
a) Statements made in the performance of a duty;
A statement is conditionally privileged if this is made in the performance of any legal, social
or moral duty, imposed upon the person making it.
The privilege is that of the publisher, the person to whom the statement is published needs no
privilege because he commits no tort. Never the less it is essential that the person to whom the
statement is made has a corresponding interest or duty to receive it. This is not to say that both
parties must have a duty or both an interest; one may have an interest and the other a duty.
The duty need not be the one enforceable by law, it is sufficient that by the moral standards of
right conduct prevalent in the community, the defendant lay under an obligation to say what he
did. It is not enough that he believed himself to be under such duty / obligation; it is for the
judge to decide whether on facts such a duty existed.
A father or a near relative may warn a lady as to the character of the man whom she proposes
to marry (Todd v. Hawkins). In Watt v. Longsdon, the defendant, a company director, informed
the chairman of the board of directors of his suspicion that the plaintiff, an employee of the
company, was misbehaving with women. He also informed the plaintiff’s wife. Held: That the
communication to the Chairman was privileged but not to the wife for although she had an
interest in hearing about the allegation, the defendant had no moral or social duty to inform
her.
b) Statements made in protection of an interest
Even when there is no duty to make the statement, it is nevertheless privileged if it is made in
the protection of some lawful interest of the person making it, e.g. if it is made in the defence
of his own property or reputation but here also there must be a reciprocity i.e. there must be an
interest to be protected on one side and a duty to protect that interest on the other.
In Adam v. Ward, the plaintiff made a complaint in the House of Commons against the General
Scobell containing charges of a wounding character. The General Scobell, as he was compelled
to do by regulations referred the matter to the Army council which after investigations found
that the attack was unjustifiable. The army council ordered the defendant to publish in the
newspaper a letter to the General Scobell vindicating him and also containing statements
defamatory of the plaintiff. The plaintiff sued. Held: The occasion of publication was
privileged and that the privilege was not destroyed either by the number of people whom the
publication might reach or by reason of the fact that the publication contained matter
defamatory of the plaintiff had publicity attacked the character of the defendant.
In Osborn v. Boutler, where some brewers answered a complaint by a publican of the poor
quality of their beer by voicing a suspicion that the publican had watered the beer, it was held
that the latter publication was covered by privilege.
The same principle is applicable even when the interest of the defendant is merely the general
interest which he possesses in common with all others in the honest and efficient exercise of
public officials of duties entrusted to them. Thus, any member of public may make charges of
misconduct against any public servant and the communication may be privileged, but the
charge must be made to the proper person, i.e., those who have a corresponding interest. A
communication to the wrong person e.g., a publication to the world at large in a newspaper or
otherwise is an excess of privilege and the privilege will thereby be lost.
c) Fair and accurate reports of parliamentary proceedings
This qualified privilege protects the advantage of publicity against any private injury resulting
from the publication. It is not limited to newspaper reports and covers other reports e.g.
Broadcast reports. In order to qualify as fair and accurate the report does not have to be a full
précis of the debate; a ‘parliamentary sketch’ may properly select those portions of the debate,
which will be of public interest. What matters is whether the report is fair and accurate in so
far as the debate concerned the plaintiff’s reputation.
d) Communication between advocate and client
This is covered by both qualified and absolute privilege. Professional communication between
an advocate and client in connection with litigation is absolutely privileged as was held in More
v. Weaver. Other communications which have nothing to do with litigation e.g. the drawing of
a client’s will are covered by qualified privilege. The general restriction is that the
communication has to be a professional one for it to be privileged and also that the relationship
of advocate – client must be proved. What passes between and advocate and a client if the
relationship has been established is privileged if, within a very wide and generous ambit of
interpretation, it is fairly referable to the relationship, or, put in another way, per Lord Atkin in
Minter v. Priest.; “If it consists of personal communications passing for the purpose of getting
or giving professional advice.” This would exclude a piece of gossip intersected by the client
in a conversation on, say, land registration e.g. “have you heard that Jones has run off with
Mrs. Brown?”
STRICT LIABILITY
Anyone who in the course of non-natural use of his land, accumulates thereon for his own
purposes anything likely to do mischief if it escapes is answerable for all direct damage thereby
caused.
This is the rule in Rylands v Fletcher (1866) where the defendant employed independent
contractors to construct a water reservoir on the land, which was separated from the plaintiff’s
land by adjoining land. In the course the works the contractors came upon some old shafts and
passages filled with earth. The contractors did not block them up. Unknown to them, the shafts
connected their land with the plaintiff’s mines. When the water filled the reservoir, it seeped
through the old shafts and into the plaintiff’s mines thence flooding them. It was found as a
fact that the defendant was not negligent, although the contractors had been. However, although
the defendant was neither negligent nor vicariously liable in tort of his independent contractors,
he was held liable by the Court of Exchequer chamber as delivered by Blackburn J at p. 279-
280 and it has become a classical exposition of doctrine.
“We think that the true law is, that the person who for his own purpose 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 consequences of its escape.”
This may be regarded as the rule in Rylands v Fletcher
The court further said “He can excuse himself by showing that the escape was owing to the
plaintiff’s default; or the act of God: It is unnecessary to inquire what excuse would be
sufficient”
The general rule, as above stated, seems to be just in principle. “The person whose grass or
corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the
water from the neighbour’s reservoir, whose cellar is invaded by filth of his neighbours or
whose habitation is made unhealthy by the fumes and noise and vapours of his neighbours
alkali works, is damnified without any fault of his own; and it seems reasonable and just that
the neighbour, who has brought something on his own property which was naturally there
harmless to others so long as it is confirmed to his own property, but which he knows to be
mischievous if it gets on his neighbours should be obliged to make good the damage which
ensues if he does not succeed in confining it to his property. But for his act in bringing, it there
no mischief could have accrued, and it seems but just that he should at his peril keep it there so
that no mischief may accrue, or answer for the natural and anticipated consequences and upon
authority, this we think is established to be the law whether the things so brought be beasts, or
water, or filth, or stenches.” Lord Cairns in the House of Lords upheld this judgment but
restricted the scope of the rule to where the defendant made a “non-natural use” of the Land.
This decision makes it clear that liability was strict in the sense that the defendant’s liability
was neither personal nor based on a mere vicarious liability for the negligence of his
independent contractors.
Requirements Of the Rule in Rylands V Fletcher
(i) The Thing
The rule does not require that the thing should both likely to escape and likely to do mischief
on escaping. If this were the case, there would be little difference between the rule in Rule in
Rylands v Fletcher and negligence. Furthermore, in Rylands v Fletcher, the thing need not be
dangerous in itself. The most harmless objects may cause damage on escape from a person
land.
The rule has been applied to a large number of objects including water, gas, electricity,
explosives, oil, vibrations, poisonous leaves of trees, a flag post, a revolving chair at a fair
ground, acid smuts from a factory, a car, fire and even at one time gypsies.
In Musgrove v. Pandelis, the court applied Blackburn J’s test literally where the collected thing
did not itself escape but caused the escape of something else. In this case, the defendant was
held liable under Rylands v. Fletcher for the escape of a fire which started in the engine of his
car was found to be an object likely to do mischief if it escaped.
The artificiality of this approach was however rejected in Mason v. Levy Auto parts in relation
to a fire which began in wooden packing cases stored in the defendant’s land. The test applied
was whether the objects were likely to catch fire and the fire spread outside the defendant’s
premises. The liability was a strict one if this occurred.
In A.G. v. Corke a landowner was held liable under Rylands v. Fletcher for permitting the
camping on his land of gypsies (caravan-dwellers) who trespassed and committed damage on
the neighbouring land. This case was however received general disapproval in applying the
rule in Rylands v. Fletcher to human beings. The objection has been that ‘things’ does not
include human beings and that liability in the above case should have been based on nuisance
or negligence.
(ii) Accumulation
The thing must be brought into the land for the defendant’s purposes. The defendant need not
own the land into which the thing is brought. A temporary occupier of land such as a lessee or
a person physically present on the land but not in legal occupation of it such as a licensee is
equally within the scope of the rule and is liable for damage caused upon escape of a thing he
has brought onto the land.
In Charing Cross Electricity Supply Co-v- Hydraulic Power Company, the rule applied to one
who had the statutory power to lay electricity cables under the highway. In Rigby v. Chief
Constable of North Amptonshire, the court stated that the rule applied to cases where the
defendant was in no sense in occupation of the land; in this case by firing a canister of gas into
the plaintiffs.
The requirement that the thing should be on the land for the purpose of the defendant does not
mean that it must benefit the defendant.
In Smeaton v. Ilford Corporation, it was stated that a local authority which was under a
statutory duty to collect sewage collected it for its own purposes within the rule in Rylands v.
Fletcher. Where the thing is naturally present on the defendant cannot be liable for its escape
under Rylands-v-Fletcher. The escape of weeds, rocks and floodwater is thus outside the scope
of the rule but recent decisions have established possibility of can action in nuisance for such
escape.
The accumulation must thus be voluntary.
(iii)Non-natural user of land
This is the most flexible and elusive ingredient of liability. Blackburn J. understood ‘natural’
to mean things naturally on the land and not artificially created. However, uncertainty crept as
a result of Lord Cairns qualification that must be ‘a non-natural user’ of the land.
Through a series of cases, courts have come to look upon ‘natural’ as signifying something
which is ordinary and usual even though it might be artificially instead of non-artificial. Non-
natural use of land was explained by the Privy Council in Richard v. Lothian as per Lord
Moulton. ‘It must be some special use bringing with it increased danger to others and must not
merely be the ordinary use of the land or such a use as is proper for the general benefit of the
community.’
What is natural is now viewed differently in different cases.
Non-natural use of land is generally constituted by certain activities as the storage on the land
in bulk of water, electricity, gas and the collection of sewage by local authorities.
It is however, arguable that many of the above examples should be held to be natural use
according to the Privy Council’s definitions as being for the general benefit of the community.
In British Celenese Ltd v. A.H. Hunt Ltd, it was held that the benefit derived by the community
from the manufacturing of electrical and electronic components made the use of land for such
purpose and the storing of strips of metal foil thereon a natural use of the land. It is thus to be
noted that the scope of ‘non-natural user’ of land has narrowed over the years. The decision
will now depend on the facts of each case. It has been held that generating steam or electricity
is not ‘non-natural’ but that storing of industrial water under pressure, or gas and electricity in
bulk is a non-natural use.
(iv) Escape
There is no liability under the rule unless there is an escape of the substance from the land
where it is kept. In Read-v-Lynns & co Ltd. the defendants operated on ammunition factory as
agents of the Ministry of Supply. The plaintiff was an appointed inspector for the ministry. In
the course of carrying out her duties in the factory, an explosion occurred causing her injuries.
She based her claim against the defendants on Rylands-v-Fletcher making no assertion that the
defendants had been negligent. It was held that Rylands-v- Fletcher was inapplicable because
there had been no escape of the thing that inflicted the injury. The House of Lords defined
escape as:
“Escape from a place where the defendant had occupation and control over land to a place
which is outside his occupation or control.”
It was stated further in this case that Rylands-v-Fletcher is conditioned by 2 elements;
a) The condition of escape from the land of something likely to do mischief if it escaped.
b) The condition of non-natural user of the land.
The House of Lords emphasized that the absence of an escape was the basis of their decision
in this case
(v) Damage
Rylands –v-Fletcher is not actionable per se and therefore there must be proof of actual damage.
This appears to mean actual damage to person or property and it excludes a mere interference
with the plaintiff’s enjoyment of this land, such as would be a ground in an action in nuisance.
Damage recoverable under the rule is limited to damage to person or property.
In Hale-v-Jennings Bros, the court held that an occupier of land was entitled to damages for
personal injury under the Rule in Rylands-v-Fletcher. In Cattle-v-Stocker Waterworks co, it
was held that purely economic loss was not recoverable.
Defences To the Rule in Rylands V Fletcher
(i) Consent of Plaintiff
If the plaintiff has permitted the defendant to accumulate the thing the escape of is complained
of, then he cannot sue if it escapes.
Implied consent will also be a defence; thus, a person becoming a tenant of business or
domestic premises that the time when the condition of the adjoining premises occupied by the
landlord is such that the happening of the Ryland v. Fletcher type is likely to ensue, is deemed
to have consented to take the risk of such an event occurring.
In Kiddle-v-City Business Properties Ltd, the plaintiff became a tenant of the defendant in a
house below the house occupied by the defendant (Landlord). The gutter of the Landlord’s
house was blocked and when it rained, an overflow of rainwater from the blocked gutter at the
bottom of the sloping roof in possession of the Landlord and above the tenant’s premises
damaged the stock in the tenant’s premises. It was held that the Landlord had a defence as the
tenant impliedly consented to the risk of rainwater overflowing into his premises.
If the accumulation benefits both the plaintiff and the defendant, the plaintiff may be deemed
to have consented to its accumulation e.g. where for the benefit of several occupants’ rainwater
is accumulated on the roof or a water closet installed or water pipes fitted, the several occupants
are deemed to have consented. On the other hand, the defence is not available as between a
commercial supplier of gas in respect of gas mains under the highway. In any event an occupier
will not be presumed to have consented to installations being left in a dangerously unsafe state.
(ii) Contributory Negligence
If the damage is caused solely by the act or default of the plaintiff himself or where the plaintiff
is contributorily negligent, he has no remedy.
If for instance a person knows that there is danger of his mine being flooded by his neighbours
operations on adjacent lands and the danger of doing some act which renders the flooding
probable, he cannot complain, as stated in Miles-v-Forest Rock Granite [Link].
In Dunn v. Birmingham Canal & Co, where the plaintiff worked a mine under the canal of the
defendant and had good reason to know that they would thereby cause the water from the canal
to escape into this mine, it was held that they could not sue in Rylands v. Fletcher when the
water actually escaped and damaged their mine. Cockburn C. J. said; “The plaintiff saw the
danger, and may be said to have courted it.”
(iii) Acts of third Parties (Acts of a stranger)
Where the occupier of land accumulates things on his land, the rule will not apply if the escape
of the thing is caused by the unforeseeable act of a stranger.
In Rickards v. Lothian the plaintiff failed in his claim against the defendant where a third party
had deliberately blocked up the waste pipe of a lavatory basin in the defendant premises,
thereby, flooding the plaintiff’s premises.
The basis of the defence is the absence of any nature of control by the defendant over the acts
of a stranger on his land and thus the burden is on him to show that the escape was due to the
unforeseen act of a stranger without any negligence on his own part.
If on the other hand, the act of the stranger could reasonably have been anticipated or its
consequences prevented, the defendant will still be liable. While it is clear that a trespasser is
a ‘stranger’ for this purpose, other person included in this term depend on circumstances. The
occupier is of course liable for the defaults of these servants in the course of an independent
contractor unless it is entirely collateral. He is liable for the folly of a lawful visitor as well as
the misconduct of any member of his family he has control over.
It has also been argued that he ought to be responsible for guests and licensees on his land but
a distinction ought to be taken here or it would be harsh to hold an occupier liable for the
act of every casual visitor who has bare permission to enter his land and of whose propensities
to evil he may know nothing of e.g. an afternoon caller who leaves the garden gate open or a
tramp who asks for a can of water and leaves the tap on. Possibly the test is, “can it be inferred
from the facts of the particular case that the occupier and such control over the licensee or over
circumstances which made his act possible that he ought to have prevented it? If so, the
occupier is liable, otherwise not.” As regards the issue of dangerous elements brought on the
owner’s land by another person, the owner is not liable under the rule as in Whitemorses v.
Standford.
(iv) Act of God
Where escape is caused directly by natural causes without human intervention in
“circumstances which not human foresight can provide against and of which human prudence
is not bound to recognize possibility” the defence of act of God applies and the occupier is thus
not liable.
(v) Statutory Authority
Sometimes, public bodies storing water, gas, electricity and the like are by statute exempted
from liability so long as they have taken reasonable care. It is a question of statutory
interpretation whether, and, if so, to what extent liability under Rylands-Fletcher has been
excluded.
In Green v. Chelsea Waterworks Co. a main pipe belonging to a waterworks company which
was authorized by parliament to lay the main, burst without any negligence on the part of the
company and the plaintiff premises were flooded; the company was held not liable.
On the other hand, In Charing Cross Electricity Co v. Hydraulic Power Co. where the facts
were similar, the defendants were held liable. The defendant had no exemption upon the
interpretation of their statute.
The distinction between the cases is that the Hydraulic Power Company were empowered by
statute to supply water for industrial purposes, that is, they had permissive power but not a
mandatory authority, and they were under no obligation to keep their mains charged with water
at high pressure, or at all. On the other hand, the Chelsea water works Company were
authorized by statute to lay mains and were under a statutory duty to maintain a continuous
supply of water it was an inevitable consequence and damage would be caused by occasional
bursts and so by necessary implication the statute exempted them from liability where there
was no “negligence’.

VICARIOUS LIABILITY
Vicarious liability signifies liabilities which A (employer) may incur to C (client) for damage
caused to C (client) by the negligence or other tort of B (employee).
It is not necessary that A should not have participated in any way in the commission of the tort
nor that a day owed in Law by A to C shall have been broken. What is required is that A should
stand in particular relationship to B and that B’s tort should be referable in a certain manner to
that relation. The commonest instance in Law is the liability of a master for the torts of his
servants. Vicarious liability generally arises from a contract service.
Master-Servant Relationship
Who is a Servant?
Since vicarious liability generally arises from a contract of service (“servant”) not a contract of
services (“independent contractor”) it is important to determine the indications of a contract of
service.
In an often-cited statement in Short v. J & W Henderson Ltd Lord Thankkerton said that there
are four indications of a contract of service;
a) The master’s power of selection of his servant
b) The payment of wages or other remuneration
c) The master’s right to control the method of doing the work, and
d) The master’s right of suspension
This list has been found helpful in determining whether a master-servant relationship exists but
it is not conclusive. It is not possible to compile an exhaustive list of all the relevant
considerations.
The court stated in Market Investigation Ltd v. Minister of Social Security (1969) per Cooke
J:

The most that can be said is that control will no doubt always have to be considered,
although it can no longer be regarded as the sole determining factor; and that factors
which may be of importance are such matters as whether he hires his own equipment,
whether he is own helpers, what degree of financial risk he takes, what degree of
responsibility for investment and management he has, and whether and how far he has
an opportunity of profiting from sound management in the performance of his task.
The control test is however not conclusively determinant of master-servant relationship
especially when dealing with professionals or men of a particular skill.
In Morren v. Swinton the defendants engaged a firm of consultant engineers to supervise the
construction of certain sewage works. Under the contract, the defendants were supposed to
appoint a resident engineer (to be approved by the consultants) to supervise the works under
the general supervision and control of the consultants. The plaintiff was appointed as a resident
engineer by the defendant and approved by the consultants pursuant to the terms of the contract.
He was paid by the defendant and was entitled to holidays with pay and was liable to be
dismissed by the defendants. He was however delegated to the consultants and was under their
general supervision and control.
Held: Absence of control by the defendant was not necessarily the most important test. The
other factors were enough to show that the plaintiff was clearly employed by the defendant
under a contract of service.
It is thus important to state that whether or not a contract of service exists will depend on the
general nature of the contract and no complete general test exists. More helpful is the well-
known statement of Denning L. J. in Stevens v. Brodribb Co. Pty. Ltd.
“It is often easy to recognize a contract of service when you see it, but difficult to say
wherein the distinction lies. One feature which seems to run through the instances is that,
under a contract of service, a man is employed as part of a business, and his work is done
as an integral part of the business; whereas under a contract of services, his work, although
done for the business, is not integrated into it but is only an accessory to it.”
Essentials for the Liability of the Master
For a master to be liable for his servant’s torts, the tort must have been committed “in the course
of employment”. An act is done in the course of employment if;
a) It was a wrongful act authorized by the master.
b) It was a wrongful and unauthorized mode of doing something authorized by the master.
In London County Council v. Caltermoles (Garages) Ltd, the defendant employed a general
garage hank, part of whose job involved moving vehicles around the garage. He was only
supposed to push the vehicles and not to drive them. On one occasion, he drove a vehicle in
order to make room for other vehicles. Whilst doing so, he negligently damaged a vehicle
belonging to the plaintiff. Held: That the negligent act was within the course of the garage
hand’s employment although he had carried his duties in an unauthorized manner. His master
was thus vicariously liable.
In Muwonge v. Attorney-General of Uganda, the appellant’s father was killed during a riot.
The shot which killed him was fired by a policeman who had seen the appellant’s father ran
towards a house and had concluded that the appellant’s father was a rioter. Held: The firing of
the shot was act done with the exercise of the policeman’s duty in which the government of
Uganda was liable as a master even though the act was wanton, unlawful and unjustified.
If the act is not done within the course of employment, the master is not liable. In Twine v.
Beans Express a van driver employed by the defendant had been expressly forbidden to give
lifts to unauthorized persons and a notice to this effect was displayed on the dashboard. The
van driver gave a lift to a person who was killed in a subsequent accident due to the negligence
of the van driver. The widows of the deceased brought an action against defendant. Held: The
action by the widows failed because the driver was acting outside the course of his employment.
In this case the act was expressly unauthorized.
Independent Contractor
An independent contractor is one who contracts to perform a certain task or duty independently
according to their own means and methods without being subject to the control of the hiring
party. This means that unlike an employee, an independent contractor is not subject to the
employer’s supervision, direction or control.
An example is visiting consultants and surgeons are not employees of the hospital and thus the
hospital is not liable. This means that the employer is generally not liable for torts committed
by an independent contractor.
An independent contractor will commonly be paid “by the job” whereas a servant will generally
receive remuneration based upon time worked. But a piece worker is still a servant; and a
building contractor is under a contract of service notwithstanding that it may contain provisions
for payment by time. Once the Master-servant relationship is established, the master will be
liable or all torts committed by the servant in the course of the employment.
Liability in Respect of an Independent Contractor
The employer is generally not liable for torts committed by an independent contractor. The
employer is however liable if he is deemed to have committed the tort.

1. Whether the employer has authorized the commission of the tort.

In many circumstances, the law will attribute to a man the conduct of another being, whether
human or animal, if he has instigated that conduct. He who instigates or procures another to
commit a tort is deemed to have committed the tort himself.

In Ellis v. Sheffield gas Consumers Co the defendant who had no authority to up the street
employed a contractor to open trenches and lay gas pipes along a street. The contractor
carelessly left a heap of stones on the footpath; the plaintiff fell over them and was injured.
Held: the defendants were liable since the contract was to do an illegal act, a public nuisance.
The decision would have been different had it been lawful for the defendant to dig up the
streets.

2. Torts of Strict Liability

The employer is liable in those circumstances e.g. in Rylands-v-Fletcher the employer was held
liable for the acts of his independent contractors as this was a case of strict liability. These in
torts of strict liability, the employer will be liable even where the tort e.g. the escape is caused
by the negligence of an independent contractor.

In Terry v. Aston, the defendant employed an independent contractor to repair a lamp attached
to his house and overhanging the footway. As it was not security fastened, the lamp fell on the
plaintiff, a passer-by and the defendant was held liable, because: it was the defendant’s duty to
make the lamp reasonably safe, the contractor had failed to do that. Therefore, the defendant
has not done his duty and is liable to the plaintiff for the consequences.

Here liability was strict.

3. Negligence
When there is an element of personal negligence on the part of the employer as to make him
liable for the acts of an independent contractor. E.g. Where the employer is negligent or careless
in employing an independent contractor for instance, where the contractor is incompetent.
Failure to provide precaution in a contract where there is risk of harm unless precaution is taken
can make the employer liable for the tort of the contractor.

In Robinson v. Beaconsfield Rural Council, the defendant employed an independent contractor,

one hook, to clean out cesspools in their district. No arrangements were made for the disposal
of the deposits of sewage upon being taken from the cesspools by hook. Hook men deposited
the sewerage on the plaintiff land. Held: The defendants had a duty to dispose the sewerage
and, on construction of the contract, they had not contract with hook for discharge of this duty
(disposing of the sewage) hence they were liable for the acts of the hook’s men in disposing it
on to the plaintiff land.

4. Where the duty of care is wide

An example is where the independent contractor is dealing with hazardous circumstances, or
works which from their very nature, pose danger to other persons.
In Holiday v. National Telephone Co, the defendant, a Telephone Company, was lawfully
engaged in laying telephone wires along a street. They passed the wires through tubes, which
they laid a trench under the level of the pavement.
The defendants contracted with a plumber to connect these tubes at the joints with lead and
solder to the satisfaction of the defendant foreman. In order to make the connections between
the tubes, it was necessary to obtain a flare from a benzoline lamb of applying heat to the lamb.
The lamb was provided with a safety valve. The plumber dipped the lamp into a caldron of
melted solder, which was placed over a fire on his footway. The safety valve not being in
working order caused the lamb to explore. The plaintiff, who was passing on the highway was
splashed by the molten solder and injured. Held: The defendant was liable because having
authorized the performance of work which from its nature was likely to involve danger to
persons using the highway were bound to take care that those who executed the work for them
did not negligently cause injury to such persons.

Guidelines in Determining whether an Act was committed during the Course of

Employment
1. Look at the mode the servant is employed to do
In Century Insurance C v. Northern Ireland Road Transport Board, one of the respondent’s
employees was delivering petrol to garage. While the petrol was flowing from the lorry to the
tank, he lit a cigarette and negligence threw away the lighted match which caused an explosion
damages the appellant’s property. The action of the employee was treated as being within the
course of employment. On appeal it was held that the respondents were liable for the damage
caused for such an action, whilst for the comfort and convenience of the employee could not
be treated as isolated act as it was a negligent method of conducting his work.
In Bayley v. Manchester Sheffield and Lincolnshire Railway the plaintiff was in a train traveling
to Macclesfield and he explained this to the mistakenly believed that the plaintiff was the wrong
train (that train was not traveling to Macclesfield) and violently ejected the plaintiff who
suffered injuries. Held: The defendants were liable because the porter was acting within the
cause of employment.
2. Whether the act was authorized within the limits of time and space e.g if one is
employed to work between 8.00 am and 5.00pm, the master is only liable for the
torts committed within that time frame.
Ruddiman & Company v. Smith, the plaintiff was using the lower room of the defendant’s
house while the defendant used the upper room for carrying on business. In the upper room
there was a lavatory. The clerk, after duty, went to the lavatory to wash his hands but on turning
on the tap and finding no water, went away without turning the tap off. When water turned on
the morning, it overflew into the lower room and damaged the plaintiff goods. Held: The
employer was liable for whether or not the use of the lavatory. Within the scope of the clerk’s
employment, it was an event incidental to his employment.
In Storey v. Aston, the defendant, a wine merchant, sent his car man and clerk to deliver wine
and pick up empty bottles. On their way back, they diverted to visit the clerks house in the
course of which they negligently knocked down the plaintiff and injure him. Held: The
defendant was not liable for the injury caused by the negligent driving of the car man for he
was, that time, engaged in a new and completely unauthorized journey
3. Whether the act was the initiative of the servant or the master had a certain
control
In Warren v. Henlys Ltd, erroneously believing that the plaintiff had to drive away from the
garage without paying or surrendering coupons for petrol which had been put in the tank of his
car, a petrol pump attendant used violent language to him. The plaintiff paid his bill and gave
the necessary coupons and after calling the police, told the attendant that he would report him
to his employers. The pump attendant then assaulted and injured him. In an action for personal
injuries against his employers. It was held that the defendants were not liable for the wrongful
act of their employee. Since the act was one of the personal vengeances and was not done in
the course of employment; it not is an act of a class which the employee was authorized to do
or a mode of doing an act within that class.
In Poland v. John Parr and Sons, Arthur Hall, a carter was employed by John Parr. Parr and
his son were conveying a wagon with bags of sugar. Arthur, on his way home for dinner was
walking else to the wagon. The plaintiff, a schoolboy, was walking home in the same direction
with his hand upon one of the bags of sugar. Honestly and reasonably thinking that the boy was
stealing, Arthur gave him a blow on the back of his neck as a result whereof he fell and the
wheel of the wagon injured his foot which was amputated. Held: In the circumstances, the
carter had implied authority to make reasonable efforts to protect and preserve the defendants
property; that the violence exerted was not so excessive as to take his act outside the scope of
authority and that the defendant were liable.
4. Where there is an express prohibition.
An express prohibition does not negate liability i.e a master does not escape liability simply
because he had an express prohibition. For liability to be determined, two factors are
considered;
(i) Whether the prohibition limits the sphere of employment. If it does, the master is not
liable for an act done outside the sphere. (Sphere).
(ii) Where the prohibition deals with the contract within the sphere of employment. If it
does, the employer will be liable. (Mode).
In Canadian Pacific Railway Co v. Lockhart a servant of the appellant Company in disregard
of written notices prohibiting employers from using private cars for the purpose of the
company’s business unless adequately insured, used his uninsured motorcar as a means of
execution of work which he was ordinarily employed to do in the course of which he injured
the respondent. Held: The means of transport was incidental to the execution of work, which
the servant was employed to do and that the prohibitions of the use of an uninsured motorcar
merely limited the mode of executing the work, breach of the prohibition did not exclude the
liability of the company to the respondent.
In Rand v. Craig, Carters were employed by a contractor to take rubbish from certain works to
his dump and were strictly forbidden not to hip it anywhere else. Some of the carters, without
knowledge of the contractors, and in contravention of their orders took the rubbish to a piece
of unfenced land belonging to the plaintiff as it was nearer the works that the dump of
contractor. Held: The illegal acts complained of where not within the sphere of the carter’s
employment and consequently the contractor was not liable for them.
5. Whether the act was a deliberate criminal act.
In Lloyd-v-Grace Smith & Co., the plaintiff had sought advice from the defendants, a firm of
solicitors, whose managing clerk conducted conveyance work without supervision. He advised
the plaintiff to sell some property, fraudulently persuading her to sign certain documents that
transferred the property to him. He disposed of it and kept the proceeds. Held: Even though the
fraud had not been committed for the benefit of the employers, nevertheless they were liable,
for the clerk had been placed in position to carry over such work and had acted throughout in
the course of his employment

OCCUPIERS LIABILITY
A company or an individual who occupies a property has a duty of care to the people who visit
it.

Occupier’s Liability at Common Law

At common law the duties of an occupier were cast in a descending scale to four different kinds
of persons. For example:
a) The highest duty of care was owed by the occupier to one who entered in pursuance of
a contract with him e.g. a guest in a hotel. In that case there was an implied warranty
that the premises were as safe as reasonable care and skill could make them.
b) A lower duty was owed to the invitee i.e. a person who without any contract entered on
business of interest both to himself and the occupier e.g. a customer coming into a shop
to view the wares he was entitled to expect that the occupier should prevent damage
from unusual danger of which knew or ought to have known.
c) Lower still was the duty of the licensee i.e. a person who entered with the occupiers
express or implied permission but without any community of interest with the occupier;
the occupiers duty towards him was to warn him of any concealed danger or trap of
which he actually knew.
d) Finally, there was the trespasser to whom there was owed only a duty to abstain from
deliberate or reckless injury.
Occupiers liability deals with the liability of an occupier of premises and extends to immovable
property as open land house, railway stations and bridges as well as movable structures like
ships, or even vehicles although lawyers prefer to treat injury in the latter as falling with
common law negligence.
Under common law lawful visitors who did not fall under the above classifications of
contractual entrants, invitees or licensees were not clearly covered and accidents arising from
the premises and affecting such person were commonly governed by the general law of
negligence.
The position of the common law was thought to be unsatisfactory. As lord Denning put it in
Slatter v. Clay Cross Co. Ltd
“If a landowner is driving his car down his private drive and meets someone lawfully
walking upon it then he is under a duty to take reasonable care so as not to injure the
walker; and his duty is the same no matter whether it is his gardener coming up with
his plants, a tradesman delivering his goods, a friend coming to tea, or a flag seller
seeking a charitable gift”

Modern Law on Occupier’s Liability

➢ Occupier
Under Occupiers’ Liability Act, the word ‘occupier’ denotes a person who has a sufficient
degree of control over premises to put him under a duty of care toward those who come lawfully
upon the premises.
An owner in possession is no doubt an occupier, but an owner who has demised the premises
to another and parted with possession is not. An absentee owner may ‘occupy’ his premises
through his servant and thus remain subject to the duty and he may also be subject to it though
he was contracted to allow a third party to have the use of the premises.
There may be more than one “occupier’ of the same structure or part of the structure.
➢ Visitors
A visitor is generally a person to whom the occupier has given express or implied permission
to enter the premises.
The Act extends the concept of a visitor to include persons who enter the premises for any
purpose in the exercise of a right conferred by law for they are to be treated as permitted by the
occupier to be there for that purpose, whether they in fact have his permission or not. This
would include a fireman attending a fire or a policeman executing a search warrant.
Implied permission – this is a question to be decided on the facts of each case and the burden
of proving an implied permission rests upon the person who claims that it existed.
Any person who enters the occupier’s premises for the purpose of communicating with him
will be treated as having the occupier’s tacit permission unless he knows or ought to have
known that he has been forbidden to enter e.g. by notice ‘no hawkers’ The occupier may of
course withdraw this implied license by refusing to speak or deal with the entrant but if he does
so the entrant has a reasonable time in which to leave the premises before he becomes a
trespasser.
The duty owed to a visitor does not extend to anyone who is injured by going where he is
expressly or impliedly warned by the occupier not to go as where a tradesman’s boy
deliberately chooses to go into a pitch-dark part of the premises not included in the invitation
and falls downstairs there (Lewis v Ronald). Further the duty does not protect a visitor who
goes to a part of the premises where no one would reasonably expect him to go.
A person may equally exceed his license by staying on premises after the occupier’ permission
has expired but the limitation time must be clearly brought to his attention.
Common duty of Care
➢ Read Section 3 Occupiers’ Liability
The Common duty of care is duty owed to all visitors as well as an entrant on contract with
implied terms. Such care as in all the circumstances of the case is reasonable to see that the
visitor will be reasonably safe in using the premises for the purpose for permitted to be there.
The Act gives some guidance in applying the common duty of care:
i. An occupier must be prepared for children to be less careful than adults; and
ii. An occupier may expect that a person in the exercise of his calling will appreciate and
guard against any special risks ordinarily incident to it, so far as the occupier leaves
him free to do so.
As to (i) above, in Phipps v. Rochesther Corporation, Delvin J stated that some of the
circumstances which are to be taken into account in measuring the occupiers obligation is the
degree of care for their children’s safety which the occupier may assume will be exercised by
the parents. In this case, the plaintiff a boy aged five was with his sister aged seven and they
walked across a large opening, which formed part of a housing estate being developed by the
defendants. The defendants had dug a long deep trench the middle of the open space a danger,
which was quite obvious to an adult. The plaintiff fell in and broke his leg. Held: A prudent
parent would not have allowed two small children to go alone on the open space in question
or at least he would have satisfied himself that the place held no danger for the children. The
defendants were thus not liable.
The judgment of Delvin J squarely placed the primary responsibility for the safety of small
children upon their parents, he stated: “It is their duty to see that such children are not allowed
to wander about by themselves or at least to satisfy themselves that the places to which they
do allow their children to go unaccompanied are safe for them to go. It would not be socially
desirable if parents were as a matter of course able to shelf the burden of walking after their
children from their own shoulders to those who happen to have accessible bits of land.”
The occupier will have discharged his duty if the place is reasonably safe for a child who is
accompanied by the sort of guardian whom the occupier is in all the circumstances entitled to
expect him to have with him.
As to (ii) above the general rule is that where an occupier employs an independent contractor
to do work, be it of cleaning or repairing on his premises the contractor must satisfy himself
as to the safety or condition of that part of the premises on which he is to work In Roles v.
Nathan (1963) two chimney sweeps were killed by carbon monoxide gas while attempting to
seal up a sweep hole in the chimney of a coke-fired boiler, the boiler being alight at the time.
Held: The occupier was not liable for their deaths. As per Lord Denning M. R. “when a house
holder calls a specialist to deal defective installation on his premises he can reasonably expect
the specialist to appreciate and guard against the danger arising from the defect.”

Specific Aspect Affecting Occupier’s Liability

a) Warning
In most cases a warning of the danger will be sufficient to enable the visitor to be reasonably
safe and so amount to a discharge by the occupier by duty of care but, if for some reason the
warning is not sufficient then the occupier remains liable.
b) Independent character
Where damage is caused to a visitor by a danger due to the faulty execution of any work of
construction, maintenance or repair by an independent contractor employed by the occupier,
the occupier is not liable if in all the circumstances if he had acted reasonably in entrusting the
work to an independent contractor and had taken such steps as he reasonably ought to in order
to satisfy himself that the contractor was competent and that the work had been properly done.
In Haseldine v Daw (1941) the plaintiff was going to visit a tenant in a block of flats belonging
to the defendant and was injured when the lift fell to the bottom of its shaft as a result of
negligence of the firm of engineers employed by the defendant to repair the lift. Held: That the
defendant having employed a competent firm of engineers to make periodical inspections of
the lift to adjust it and to report on it had discharged the duty owed to the plaintiff whether the
plaintiff was an invitee or a licensee.

LIMITATION OF ACTIONS
Causes of actions are not enforceable in perpetuity, they must be enforced within the duration
prescribed by law failing which they become statute barred.
The Limitation of Actions Act prescribes the duration within which causes of action must be
enforced in Kenya.

Cause of Action Years

Negligence 3

Defamation 1
The purpose of the Act in fixing the duration is to facilitate the administration of justice by
ensuring that cases are heard as and when they occur. The duration also ensures that cases are
decided on the best available evidence. It also ensures that the hearing of cases is spread out.
When does time start running?
As a general rule it starts running from the date a cause of action arises e.g the date of a breach
of contract or the date when the accident occurred. However, the running of time may be
postponed in certain circumstances:
a) When the prospective defendant is the president or is exercising the functions of the
office of the president, time starts running when he ceases to hold office or stops
exercising the functions or dies, whichever comes first.
b) If the prospective defendant or plaintiff is an infant/ minor, time starts running when he
attains the age of majority (18 years) or dies, whichever comes first.
c) If the prospective plaintiff is a person of unsound mind, time starts running when he
becomes of sound mind or dies, whichever comes first.
d) If the prospective plaintiff is labouring under mistake, fraud or ignorance of material
facts, time starts running when he ascertains the true position or when a reasonable
person would have so ascertained.

A statute barred action may be proceeded with “with leave of the court” if the court is satisfied
that the delay was justifiable after considering the circumstances of the case.
LAWS GOVERNING PATENTS AND INTELLECTUAL PROPERTY
What is Intellectual Property?
Intellectual property refers to creations of the mind, such as inventions; literary and artistic
works; designs and symbols, names and images used in commerce. IP is protected in law e.g
patents, copyrights which enable people to earn recognition or financial benefit from what they
invent or create
Why do intellectual property rights matter?
 1. Reward for intellectual creation; it is both and appropriate that the person putting in the
work and effort into an intellectual creation and new solution has some benefit as a
result of this endeavour.
2. Encouragement and growth; through protection of intellectual property, creative
endeavours are encouraged and grow
3. Recognition of Protection; Intellectual property rights may help to recognize protection

PATENTS
Patents are one of the oldest forms of intellectual property protection and, as with all forms of
protection for intellectual property, the aim of a patent system is to encourage economic and
technological developments by rewarding new solutions resulting from the intellectual
creativity.
A patent is a document which describes a specific invention contains a ‘claim’ which creates a
legal right for the inventor alerting that the invention can normally be exploited only with the
authorization of the owner of the patent.
In other words, a patent protects an invention, and grants to the owner the exclusive rights to
use his/her invention for a limited period of time provided that the invention meets certain
conditions. An invention may be defined as a new solution to a technical problem.
A Patent is a legal document that grants an exclusive right on the patented invention, which is
a product or a process that provides, in general, a new way of doing something, or offers a new
technical solution to a problem.
A patent document, which is published to the public at large, indicates the scope of patent
protection and contains a detailed description of the patented invention. Example of inventions
include band-aid, electric iron, safety pin, ball point pen, telephone, etc.

Purpose of a Patent
The purpose of a patent is to provide a form of protection for technological advances. In
general, patent protection provides the possibility of a reward not only for the creation of an
invention but also for the further development of an already existing invention.
In order to obtain a patent, an applicant must disclose his invention to the public.
i. Publication of the inventions allows the public to obtain new technological knowledge.
ii. It inspires other inventors to innovate further while avoiding “reinventing a wheel”.
iii. Patent protection would accelerate creativity and encourage inventors and their
employers to continue their efforts to develop a new technology.
iv. They do not guarantee commercial success of the patented invention in the market.
(Many other factors such as design of a product and marketing strategies, significantly
contribute to such commercial success.)
CRITERIA FOR PATENT PROTECTION,
Inclusions and Exclusions
Inclusions in general, inventions that may be protected by patents can be either processes or
products in all areas of technology, for example, a patent may be granted for a chemical
compound or a process for producing a specific chemical compound.
Patentable inventions can be simple products or improvements of existing products, such as
new lever on a machine that enables it to work faster.
Exclusions However, there are subject matter that are not considered as “inventions”. For
example, in many countries, scientific theories, mathematical methods are generally not
patentable.
Patents are issued for inventions. An invention means a solution to a specific problem in the
field of technology. It may relate to a product or a process. (Section 21 (1 and 2)) of Industrial
Property Act.
The Following are not regarded as inventions and shall be excluded from Patent Protection;(sec
21 (3) of Industrial Property Act.
(i) discoveries, scientific theories and mathematical methods
(ii) schemes, rules or methods for doing business, performing purely mental acts or playing
games.
(iii) methods for treatment of the human or animal body by surgery or therapy, as well as
diagnostic methods practised in relation thereto, except products for use in any such
methods.
(iv) mere presentation of information.
(v) public health related methods of use or uses of any molecule or other substance
whatsoever used for the prevention or treatment of any disease which the Cabinet
Secretary responsible for matters relating to Health may designate as a serious health
hazard or as a life-threatening disease

PATENTABLE INVENTIONS
An invention is patentable if it is new, involves an inventive step and is industrially applicable.
(Section 22 of Industrial Property Act)
Conditions and Criteria for Patentability
1. It must be new (novelty)
2. It must involve an inventive step
3. It needs to be industrially applicable or useful.

1. Novelty (section 23 of Industrial Property Act)

An invention is new if it is not anticipated by prior art.
Everything made available to the public anywhere in the world by means of written disclosure
(including drawings and other illustrations) or, by oral disclosure, use, exhibition or other non-
written means shall be considered prior art. Provided that such disclosure occurred before the
date of filing of the application or, if priority is claimed, before the priority date validly claimed.
An invention is novel only if a reasonable man skilled in the art in question would recognise it
as being new and inventive beyond the existing state of knowledge and art.
 2. Inventive Step (section 24 of Industrial Property Act)
An invention shall be considered as involving an inventive step if, having regard to the prior
art relevant to the application claiming the invention, it would not have been obvious to a
person skilled in the art to which the invention pertains on the date of the filing of the
application or, if priority is claimed, on the priority date validly claimed in respect thereof.
It must represent a sufficient advance in relation to the state of the art as of the filing date. If
the invention is obvious to a person of ordinary skill in the field concerned, it would not qualify
for patent protection.
3. Industrial Application (section 25 of Industrial Property Act)
An invention shall be considered industrially applicable if, according to its nature, it can be
made or used in any kind of industry, including agriculture, medicine, fishery and other
services.
It has to be susceptible of use for an industrial or business purposes beyond a mere theoretical
phenomenon.
NON-PATENTABLE INVENTIONS (section 26 of Industrial Property Act)
The following shall not be patentable—
(a) plant varieties as provided for in the Seeds and Plant Varieties Act (Cap. 326), but not
parts thereof or products of biotechnological processes; and
(b) inventions contrary to public order, morality, public health and safety, principles of
humanity and environmental conservation

Right to a Patent (section 30 of Industrial Property Act)

A right to a patent shall belong to the inventor. If two or more persons have jointly made an
invention the right to the patent shall belong to them jointly.
If and to the extent to which two or more persons have made the same invention independently
of each other, the person whose application has the earliest filing date, or if priority is claimed,
the earliest validly claimed priority date that leads to the grant of a patent shall have the right
to the patent.
The right to a patent may be assigned or may be transferred by succession.
Section 32 of Industrial Property Act. (Inventions made in execution of commission or by
employee.

Rights of a Patent Holder

1. A patent holder has the right to assign(sell) or to license a patent. In other words, the
patent owner may, if he so wishes conclude a licensing contract or transfer his or her
exclusive rights to another person.
2. A patent owner has the right to exclude all others in the territory covered
APPLICATION FOR A PATENT (Sec 34)
An application for a patent shall be filed with the Managing Director and shall contain-
(a) A request
(b) A description
(c) One or more claims
(d) One or more drawings (where necessary)
(e) An abstract
A request
The request shall state the name of and prescribed data concerning the applicant, the inventor
and the agent, if any and the title of the invention and where the applicant is not the inventor,
the request shall be accompanied by a statement justifying the applicant’s right to the patent.
The appointment of an agent shall be indicated by furnishing a power of attorney signed by the
applicant.
Description
The description shall disclose the invention and the best mode for carrying out the invention in
full, clear, concise and exact terms as to enable a person skilled in the art to make, use or
evaluate the invention and that description shall include any drawing and relevant deposits as
in the case of microorganisms and self-replicable material which are essential for the
understanding of the invention.
Claims
The claim or claims shall define the matter for which protection is sought and shall be clear
and concise and fully supported by the description.
Abstract
The abstract shall merely serve the purpose of technical information; in particular, it shall not
be taken into account for the purpose of interpreting the scope of the protection sought.
Rights of the Applicant or the Owner of the Invention (Sec. 53)
The applicant or the owner of the invention shall have the following rights
(i) To be granted the patent, where the relevant requirements under the Act are fulfilled.
(ii) After the grant of the patent and within the limits in section 58 to preclude any person
from exploiting the patented invention in the manner referred to in section 54.
(iii) To conclude licence contracts as provided for in Part X of the Act.

Obligations of the Applicant or Owner of the Invention

(i) to disclose the invention in accordance with the Act.
(ii) to give information concerning corresponding foreign applications and grants.
(iii) to pay fees to the Managing Director, as prescribed in the Act.
(iv)in connection with licence contracts and contracts assigning patents
 (v) or patent applications, to refrain from making undesirable provisions referred to in
section 69.
Rights of Owner of Patent (Sec 54)
The owner of the patent shall have the right to preclude any person from exploiting the
protected invention by any of the following acts;
(a) when the patent has been granted in respect of a product—
(i) making, importing, offering for sale, selling and using the product; or
(ii) stocking such product for the purposes of offering it for sale, selling or using the
product.
(b) when the patent has been granted in respect of a process-
(i) using the process; or
(ii) making, importing, offering for sale, selling a product obtained directly by
means of the process.

Enforcement of Rights
The owner shall have the right-
(a) to obtain an injunction to restrain the performance or the likely performance, by any
person without his authorization, of any of the acts referred to in section 54;
(b) to claim damages from any person who, having knowledge of the patent, performed
any of the acts referred to in section 54, without the owner’s authorization.
(c) to claim compensation from any person who, without his authorization, performed any
of the inventions, claimed in the published application, as if a patent had been granted
for that invention.

Limitation of Rights (section 58)

The rights under the patent shall extend only to acts done for industrial or commercial purposes
and in particular not to acts done for scientific research.
The rights under the patent shall not extend to acts in respect of articles which have been put
on the market in Kenya or in any other country or imported into Kenya by the owner of the
patent or with his express consent. The rights under the patent shall not extend to the use of
articles on aircraft, land vehicles or vessels of other countries which temporarily or accidentally
enter the airspace, territory or waters of Kenya.
The rights under the patent shall be limited by the provisions of the terms of the patent. The
rights under the patent shall be limited by the provisions on compulsory licences for reasons of
public interest or based on interdependence of patents and by the provisions on State
exploitation of patented inventions.
The rights of the patent shall not extend to variants or mutants of living forms or replicable
living matter that is distinctively different from the original for which patents were obtained
where such mutants or variants are deserving of separate patents.
Term of Patent (section 60)
A patent shall expire at the end of 20 years from the filing date of the application.

UTILITY MODELS
There are instances when an invention does not meet the criteria or the test of novelty for the
purpose of a patent grant. In such a case, the applicant for patent grant may instead convert his
application to be one for the grant of a utility model certificate.
Section 2 of Industrial Property Act defines Utility Model as any form, configuration or
disposition of element of some appliance, utensil, tool, electrical and electronic circuitry,
instrument, handicraft mechanism or other object or any part of the same allowing a better or
different functioning, use, or manufacture of the subject matter or that gives some utility,
advantage, environmental benefit, saving or technical effect not available in Kenya before and
includes micro-organisms or other self-replicable material, products of genetic resources,
herbal as well as nutritional formulations which give new effects.
In general, utility models are considered particularly suited for protecting inventions that make
small improvements to, and adaptations of, existing products or that have a short
commercial life. Utility model systems are often used by local inventors.
in general, utility model protection means that the invention cannot be commercially made,
used, distributed, imported or sold by others without the utility model owner's consent. The
above right is territorial, i.e. the right can be enforced only within the country in which a utility
model is granted.
Section 82 of Industrial Property Act states that an invention qualifies for a utility model
certificate if it is new and industrially applicable. A registration certificate for a utility model
shall expire at the end of the tenth year after the date of filing of the application in respect
thereof, and shall not be renewable.

INDUSTRIAL DESIGN
An industrial design relates to the appearance of an article, which results from features such as
the lines or colours of the article or its ornamentation. An Industrial design may consist of
three-dimensional features such as the shape of an article or two dimensional features such as
patterns, lines or colour of an article.
Industrial designs are applied to a wide variety of products of industry or handicraft: from
watches, jewellery, fashion and other luxury items, to industrial and medical implements; from
house ware, furniture and electrical appliances to vehicles and architectural structures; from
textile designs to leisure items, such as toys and pet accessories.
Section 84 of Industrial Property Act defines industrial design as the overall appearance of a
product resulting from one or more visual features of the shape, configuration, pattern or
ornamentation of a product.
There is no requirement that a design needs to be attractive, decorative, ornamental or
aesthetically pleasing.
Definition of subject matter of protection
The subject matter of the legal protection of industrial designs is not articles or products but
rather the design which is applied to or embodied in such articles or products. To be protected,
industrial designs must be new or original.
Right to Industrial Design (section 85)
the creator of an industrial design or his successors in title shall have the exclusive rights to
sell or cause to be sold for commercial or industrial purposes the goods in which the design is
incorporated
Registrable Industrial Designs (Sec 86)
An industrial design is registrable if it is new.
An industrial design is new unless it is identical or substantially similar in overall impression
to an industrial design that has been disclosed to the public anywhere in the world by
publication or use prior to the filing date or, where applicable, the priority date of the
application for registration.
The following shall not be registered as industrial designs-
(a) industrial designs that are contrary to public order and morality.
(b) works of sculpture, architecture, painting, photography and any other creations that are
purely of artistic nature.

Registration of an Industrial Design Section 87

Any person wishing to register an industrial design shall send to the
Institute—
(i) an application in the prescribed form.
(ii) a power of attorney, where the applicant is represented by an agent;
(iii)drawings, photographs or other graphic representations of the article embodying the
industrial design and an indication of the kind of products for which the industrial
design is to be used; and
(iv) the prescribed application fee.
Where the applicant is not the creator, the request shall be accompanied by a statement
justifying the applicant’s right to the registration of the industrial design.
Duration and Renewal of registration of an Industrial Design (Sec 88)
The duration of the registration of an industrial design shall expire at the end of the fifth year
following the date of the application for registration. The registration of a design may be
renewed for two further consecutive periods of five years upon payment of a prescribed fee.
The fee for the renewal of registration of an industrial design shall be paid within twelve months
preceding expiration of the period of registration but a grace period of six months shall be
allowed for the late payment of the renewal fee on payment of the surcharge, as may be
prescribed.

Graphic Representations
An application for registration of an industrial design together with any drawing, photograph,
graphic representation or specimen shall be kept confidential until the application is published
in accordance with section 87.
Drawings, photographs or other graphic representations of industrial designs shall be kept by
the Institute for a period of eight years after the expiry of the registration and may be examined
by any interested person on payment of the prescribed fee.
Rights Conferred by Registration of Industrial Design (section 92)
Registration of Industrial Design shall confer upon its registered owner the right to preclude
third parties from performing the following registration acts in Kenya-
(a) reproducing the industrial design in the manufacture of a product;
(b) importing, offering for sale and selling a product reproducing the protected industrial
design.
(c) stocking of such a product for the purposes of offering it for sale or selling it.

The rights conferred by the registration of an industrial design shall extend only to acts done
for industrial or commercial purposes and shall not extend to acts in respect of a product
embodying the protected industrial design after the product has been lawfully imported or sold
in Kenya.
The registered owner of an industrial design shall, in addition to any other rights, remedies or
actions available to him, have the right to institute court proceedings against any person who
infringes the industrial design by performing, without his consent, any of the acts referred to in
subsection (1) or who performs acts which make it likely that infringement will occur
Benefits for Protecting Industrial Designs
Why Protect Industrial Designs?
The appearance of a product can be a key factor in the consumer’s purchase decision: the
success or failure of a product may rest, at least partially, on its look. Therefore, to successfully
commercialize a product, an enterprise generally invests time and money to innovate, develop
and create articles with a new or original design.
Reasons industrial Designs should be Protected

1. Helps obtain return on investments: The protection contributes to obtaining

a return on investments made in creating, developing and marketing attractive
and innovative products.
 2. Provides exclusive rights: Protecting industrial designs - and, by so doing,
getting an exclusive right on them - is essential to be able to prevent or stop
unauthorized copy or imitation of protected designs by third parties: the owner
of a protected industrial design has the right to prevent third parties not having
his/her consent from making, selling or importing articles bearing or
embodying a design which is a copy, or substantially a copy, of his/her
protected design, when such acts are undertaken for commercial purposes.

3. Facilitates marketing and commercialization: Since industrial designs are

that aspect of an article which aims at appealing to consumers, they can be an
important element of a company’s brand and business assets which may
increase the market value of a company and its products and facilitate their
marketing and commercialization

4. Is a revenue generator: Industrial design rights can be sold or licensed to

another enterprise, which will then generate revenues for the rights owner.

Overlapping Protection
Depending on the particular law and the kind of design an industrial design may also be
protected as a work of art under copyright law. For instance, in some jurisdictions, industrial
design protection and copyright protection can be cumulative. However, in other jurisdictions,
if copyright is allowed, it is mutually exclusive to industrial design protection
Duration of Protection
Industrial design rights are granted for a limited period. It amounts to 10 years according to the
TRIPS Agreement.
TRADEMARKS
a trademark is any sign or any combination of signs used to distinguish the goods and/or
services offered by one undertaking from those offered by another.
What is a Service mark?
A service mark is similar to a trademark differing only in that trademark covers goods while
the former covers services. Generally speaking, the term trademarks is often used in a way that
includes both trademark and service marks.
Examples of Trademarks
Generally, trademarks composed exclusively of signs or indications that are customary in the
current language or may serve in trade, to designate the kind, quality, quantity, destination,
value, geographical origin, or time of production of the good or service to which the trademark
relates cannot be protected.
There are some descriptive examples of trademarks;
(a) Word marks
(b) Sound marks
(c) Smell and texture marks
(d) Hologram mark
 (e) Figurative Element

1. Word Marks
There are word marks, consisting of words, letters, numerals, abbreviations or names for
instance surnames. For example, the famous make of a car, Ford named after Henry Ford who
built the first one. Then there is WH Smith the bookseller. We also find abbreviations such as
IBM.
2. Sound Marks
There are such things as sound marks, an advertising jingle can serve as a trademark. For
example, the tone of Nokia Corporation.
3. Smell and Texture Marks
There are even smell marks and textures marks in certain countries, where a particular scent or
texture could be protected as a trade mark.
4. Hologram Mark
We are also in recent time, seeing new types of trademarks coming on the market. One of them
is the hologram mark. If you look at a credit card for instance you will see a small image that
changes according to the angle from which you look at it.
SIGNS THAT CANNOT BE USED AS TRADEMARKS
signs with the following characteristics cannot be protected as trademarks;-
1. Those that mislead the consumer in relation to the geographical origin.
2. Those that mislead the consumer in relation to the quality or nature of the product or
service to which the trademark relates.
3. Those that are contrary to moral or public order.
4. Those that consist of or contain reproductions of armorial bearings, flags and other
emblems of state party to the Paris Convention or the World Trade Organisation.
5. Those that are official signs and hallmarks indicating control and warranty adopted by
them by them and any imitation from a heraldic point of view.

Characteristics of a Trademark
(i) It must be distinctive
(ii) It should not be deceptive
(i) Must be Distinctive
To be distinctive it must by its very nature be able to distinguish goods and services. A good
example would be the word “apple”. While “Apple” is a very distinctive trademark for a
computer because it has absolutely nothing to do with computers. It would not be distinctive
for actual apples. In other words, someone who grows and sells apples could not register the
word “apple” as a trademark and protect it because his/her competitors have to be able to use
the word to describe their own goods.
In general terms, a trademark is not distinctive if it is descriptive. It is descriptive if it describes
the nature or identity of the goods or services for which it is used.
Sec 12 of Trademark Act Distinctive means adapted, in relation to the goods in respect of which
a trade mark is registered or proposed to be registered, to distinguish goods with which the
proprietor of the trade mark is or may be connected in the course of trade from goods in the
case of which no such connexion subsists, either generally or, where the trade mark is registered
or proposed to be registered subject to limitations, in relation to use within the extent of the
registration and in relation to services means to distinguish services with the provision of which
the proprietor is or may be connected in the course of business, from services the provision of
which he is not so connected.

(ii) Must not be Deceptive

Typically, a deceptive trademark would be one that says that the goods for which it is used
have certain qualities when they don’t. That is when it claims a quality for the goods that they
do not have. Example would be the trademark “Real Leather” for goods that are not made of
genuine leather.
Sec 14 of Trade Mark Act no person shall register as a trade mark or part of a trade mark any
matter the use of which would, by reason of its being likely to deceive or cause confusion or
otherwise, be disentitled to protection in a court of justice, or would be contrary to law or
morality, or any scandalous design.
ASSESSMENT OF A TRADEMARK
One of the key points raised was that the distinctiveness of a sign for a Trade Mark has to be
assessed in relation to the goods or services it is to be associated with. It is important also to
know that the assessment of a trade mark is not limited to the verbal elements of the sign but
also extends to its figurative elements.
For example, the registration of a mere real image of a cow for dairy products may not be
considered due to lack of distinctiveness. However, if the image is stylized or is combined with
other verbal or figurative elements, the sign could then be considered to be distinctive.
How is Protection Achieved?
The most common way of protecting a trademark is to have it registered in the Trademark
Register, and many countries make this a condition of trademark protection. It must first be
registered, and once it has been registered it is protected, and its owner is entitled to prohibit
others from using it.
Register of Trade Marks
There shall be kept in the office of the Registrar of Trade Marks the register of trade marks,
with names, addresses and descriptions of their proprietors, notification of assignments and
transmissions, names, addresses and descriptions of all licensees, disclaimers, conditions,
limitations and such other matters related to registered trademarks. (Section 4 of Trade Mark
Act)
Duration of Trademark Protection
Trade mark registration is valid for ten (10) years from the date of application. Six months prior
to the expiry of the ten years, the registrar will notify the owner of the trade mark of the
imminent expiry of the concerned trademark.
The owner may then apply for a renewal which covers the next 10 years and the renewal can
continue every 10 years thereafter upon payment of a renewal fee.
Rights Conferred in Trademark Registration
In principle, a trademark registration will confer an exclusive right to the use of the registered
trademark. What does the right of use mean? It means first the right of the owner of the mark
to affix it on goods, containers, packaging, labels, etc. or to use it in any other way in relation
to the goods for which it is registered. It means also the right to introduce the goods to the
market under the trademark or to license to another party the right to use the trademark in return
for payment.
It follows from the mark’s basic function of distinguishing the goods that the owner must be
able to object to the use of identical or confusingly similar marks in respect of identical or
similar goods and/or services in order to prevent consumers from being misled.
WELL-KNOWN MARKS
Some companies have been successfully established via their trademarks or service marks,
worldwide renown. Subsequently, consumers can without effort recognize and identify their
goods and services, their qualities and their features without referring to the location of the
company in question.
Examples of well-known marks MCDonald’s, Apple, Louis Vuitton, amazon
Factors to be considered in determining whether a Mark is well-known or not
1. the degree of knowledge or recognition of the mark in the relevant sector of the public.
2. the duration, extent and geographical area of any use of the mark.
3. the duration, extent and geographical area of any promotion of the mark, including
advertising or publicity and the presentation, at fairs or exhibitions, of the goods and/or
services to which the mark applies.
4. the duration and geographical area of any registrations, and/or any applications for
registration, of the mark, to the extent that they reflect use or recognition of the mark.
5. the record of successful enforcement of rights in the mark, in particular, the extent to
which the mark was recognized as well known by competent authorities;
6. the value associated with the mark.

Protection of Well-known Marks

there may be companies which intend to take unfair advantage of those well-known marks by
creating marks that are similar or that would create confusion with the well-known ones, thus
misleading consumers. To overcome this problem, the Paris Convention, the TRIPS
Agreement, as well as many national laws, have provided for a special protection of well-
known marks.
Is it possible to get world-wide protection for a trademark?
You can go to each country separately, like all intellectual property rights, trademarks are
territorial rights which basically means that their protection is confined to the territory where
registration was granted.
There is another option, you can use WIPO’s Madrid System for the International
Registration of Marks, which is a convenient and cost-effective solution for registering and
managing trademarks worldwide. By filing a single application and paying one set of fees you
may apply for protection in more than 100 countries. It is important to know that, before you
can file an international application, you need to have already registered, or have filed an
application, in your “home” IP office.
It is advisable before expanding your business, to protect your trademark in all the countries
that you wish to use it in.
Registration (Sec 6 of Trademark Act)
A trademark shall be registered in respect of particular goods or services which shall be
classified in accordance with the International Classification of Goods and Services (NICE)
and any figurative elements of the mark shall be classified in accordance with the International
Classification of the Figurative Elements of Marks.
COPYRIGHT
Copyright is concerned with protecting the work of the human intellect. The domain of
copyright is the protection of literary and artistic works. These include writings, music, and
works of the fine arts, such as paintings and sculptures, and technology-based works such as
computer programs and electronic databases.
Copyright protects works, that is the expression of thoughts and not ideas. So, if you imagine
a plot, this, as such is not protected.
There is no requirement that the literary and artistic work should be good or have artistic merit.
It should, however, be original.
Sec 22 of Copyright Act the following works shall be eligible for copyright or related rights-
Literary works, musical works, artistic works, dramatic works, audio visual works, sound
recordings and broadcast.
Copyright According to Berne Convention
Article 2 of Berne Convention
Computer Programmes (sec 26A of Copyright Act)
a person who is in lawful possession of a computer program may do any of the following acts
without the authorization of the right holder whereby copies are necessary for the use of the
computer program in accordance with its intended purpose—
(a) to make copies of the program to the extent necessary to correct errors;
(b) to make a back-up copy
(c) for the purpose of testing a program to determine its suitability for the person's use
 (d) for any purpose that is not prohibited under any license or agreement whereby the
person is permitted to use the program.

What is meant by Derivative works?

“Derivative works” are works that are derived from other existing sources. Examples of
derivative works include:-
(a) translation of works into a different language
(b) adaptations of works, such as making a film scenario based on a novel.
(c) Arrangement of music, such as an orchestra version of a musical composition initially
written for piano.
(d) Other alterations of works, for example an abridgement of a novel.
(e) Compilations of literary and artistic works such as encyclopaedias and anthologies
Before creating a derivative work, you must respect the rights of the author of the initial work.
For example, an author who wishes to translate a novel into a foreign language should seek
authorization from the author of the novel that will be translated. Making the translation
without authorization would expose the translator to the risk of being sued for copyright
violation.
Rights Protected by Copyright
The owner of copyright in a protected work may use the work as he or she wishes, and may
prevent others from using it without his authorization. Thus, the rights granted under national
laws to the owner of copyright in a protected work are normally "exclusive rights": to use the
work or to authorize others to use the work, subject to the legally recognized rights and interests
of others.
What are the Types of rights protected by Copyright
There are two types of rights under copyright:
(a) Economic Rights
(b) Moral Rights
ECONOMIC RIGHTS; which allow the owner of rights to derive financial reward from the
use of his works by others. They can be transferred or assigned to other owners usually for a
sum of money or royalties depending on the proposed usage of the work. Economic rights
include the right of reproduction, rights of public performance, broadcasting and
Communication to the public and making available and the rights of translation and
adaptation.
Right of Reproduction
The right of reproduction would for instance, cover the printing of books and photocopying
too. It can cover more modern methods of reproduction such as tape recording or digital
recording and the copying of those recordings. It can cover the storage of works in computer
memories and in the “cloud” and the copying of digital files on CD-ROMS, USB drives and
so on.
The right of the owner of copyright to prevent others from making copies of his or her works
is the most basic right under copyright.
Examples;
(i) Copies of a novel; The making of a protected work is the act performed by a publisher
who wishes to distribute copies of a text-based work to the public, whether in the form of
printed copies or digital media such as CD-ROMs or audio books.
(ii) CDs in a video library; The right of a phonogram producer to manufacture and
distribute compact discs (CDs) or MP3 files containing recorded performances of musical
works is based, in part on the authorization given by the composers of such works to reproduce
their compositions in the recording.
The right to control the act of reproduction is the legal basis for many forms of exploitation of
protected works. Other rights recognized are;
(a) Right to authorize distribution
(b) Right of Rental
(c) Right to control importation

Exception to the General Rule

There are some acts of reproducing a work which are exceptions to the general rule because
they do not require the authorization of the author or other owner of rights; these are known as
“limitations and exceptions” to exclusive rights. Many national laws traditionally allow
individuals to make single copies of works for private, personal and non-commercial purposes.
The emergence of digital technology, which creates the possibility of making high-quality,
unauthorized copies of works that are virtually indistinguishable from the source (and thus a
perfect substitute for the purchase of or other legitimate access to, authorized copies), has called
into question the continued justification for such a limitation on the right of reproduction for
these types of digital files.
Right of Public Performance, Broadcasting and Communication to The Public and Making
Available
A public performance is considered to be any performance of a work at a place where the public
is or can be present or at a place not open to the public but where a substantial number of
persons outside the normal circle of a family and its closest social acquaintances is present.
On the basis of the right of public performance, the author or other owner of copyright may
authorize live performances of a work, such as the presentation of a play in a theatre or an
orchestra performance of a symphony in a concert hall. Public performance also includes
performance by means of recordings; thus, musical works embodied in phonograms are
considered “publicly performed” when the phonograms are played over amplification
equipment in such places as discotheques, airplanes, and shopping malls.
You perform a work when you play a tune, for example when you act on stage and over the
years that right has given rise to a number of other rights such as the right of broadcasting and
the right of communication to the public. Broadcasting may actually form part of
communication to the public. All kinds of communication will be covered broadcasting being
one but cable distribution could be another and internet distribution another.
Under the Berne Convention, the right of broadcasting covers the emission by wireless means
for members of the public within range of the signal, whose equipment allows reception of
sounds or of images and sounds, whether by radio, television, or satellite.
Under the Berne Convention, owners of copyright have the exclusive right of authorizing
public performance, broadcasting and communication to the public of their works. Under some
national laws, the exclusive right of the author or other owner of rights to authorize
broadcasting is replaced, in certain circumstances, by a right to equitable remuneration,
although such a limitation on the broadcasting right is less and less common.
Under Copyright Act Public Performance means ;-
(a) in the case of work other than an audio-visual work, the recitation, playing, dancing,
acting or otherwise performing the work, either directly or by means of any device or process
Read Sec 30 on Rights of Performers.
Rights Of Translation and Adaptation
The acts of translating or adapting a work protected by copyright also require the authorization
of the owner of rights.
Translation means the expression of a work in a language other than that of the original version.
Adaptation is generally understood as the modification of a work to create another work, for
example adapting a novel to make a motion picture or the modification of work to make it
suitable for different conditions of exploitation.
Translations and adaptations are works protected by copyright. Therefore, in order to reproduce
and publish a translation or adaptation, authorization must be obtained from both the owner of
the copyright in the original work and the owner of copyright in the translation or adaptation.
The rights of distribution, rental and communication to the public including “the making
available to the public of works in a way that the members of the public may access the work
from a place at a time individually chosen by them.”
MORAL RIGHTS; in many jurisdictions this second type of rights can never be transferred.
They always remain with the original author of the work, even if the economic rights are
transferred or assigned. Moral rights include the right of attribution, the right of paternity and
the right of integrity.
Section 32 of Copyright Act states that even after the transfer of economic rights, the author
shall have the right to claim the authorship of the work and object to any distortion, mutilation
or other modification of or other derogatory action in relation to, the said work which would
be prejudicial to his honour or reputation.
None of the rights shall be transmissible during the life of the author but the right to exercise
any of the said rights shall be transmissible by testamentary disposition or by operation of the
law following the demise of the author.
The author has the right to seek relief in connection with any distortion, mutilation or other
modification of, and any other derogatory action in relation to his work, where such work
would be or is prejudicial to his honour or reputation
Right of Attribution
Moral rights are different: they are made up of two things, the first being right of authorship
which is formally referred to as the right of attribution (the term “right of paternity” has
traditionally been used in civil law jurisdictions although is being used less because of its
gender connotations). That is the right to claim the status of author of a work and to have that
authorship recognized. It is basically the right to have your name mentioned for instance when
work is reproduced.
Right of Integrity
Moral rights are also the right of authorship and the right of respect that is, the right to object
the work being distorted or used in contexts that are prejudicial to the honour and literary and
artistic reputation of the author. This is often referred to as the right of integrity. He or she
can oppose the distortion of the work in such a way that its cultural or artistic integrity is
adversely affected.
TRANSFER OF COPYRIGHT
Many creative works protected by copyright require financial investment and professional
skills for their production and further dissemination especially by mass distribution. Activities
such as book publishing, and sound recording or film producing, are usually undertaken by
specialized business organizations or companies, and not directly by the authors.
Usually, authors and creators transfer their rights to these companies by way of contractual
agreements, in return for compensation. The compensation may take different forms, such as
lump sum payments, or royalties based on a percentage of revenues generated by the work.
In some countries, the copyright law provides that moral rights are not transferable, at least
during the life of the author, although they may frequently go to heirs upon the death of the
original author.
1. The transfer (or assignment) could affect all the economic rights or only some of them
(partial assignment)
2. The transfer or assignment may be granted for a specific period of time and a limited
territory or for the duration of the full term of copyright and worldwide.
3. Assignments and transfers entail important consequences for the author.

ASSIGNMENT AND LICENSES (sec 33)

copyright shall be transmissible by assignment, by licence, testamentary disposition, or by
operation of law as movable property. An assignment license or testamentary disposition of
copyright may be limited so as to apply only to some of the acts which the owner of the
copyright has the exclusive right to control, or to a part only of the period of the copyright, or
to a specified country or other geographical area.
No assignment of copyright and no exclusive licence to do an act the doing of which is
controlled by copyright shall have effect unless it is in writing signed by or on behalf of the
assignor, or by or on behalf of the licensor, as the case may be. An assignment shall not be
valid unless it is lodged at the Board and a certificate of recordal issued to the applicant and
entry made in the Assignment Register.
A non-exclusive licence to do an act the doing of which is controlled by copyright may be
written or oral, or may be inferred from conduct, and may be revoked at any time, but a licence
granted by contract shall not be revoked, either by the person who granted the licence or his
successor in title, except as the contract may provide, or by a further contract.
An assignment, licence or testamentary disposition may be effectively granted or made in
respect of a future work, or an existing work in which copyright does not yet subsist, and the
prospective copyright in any such work shall be transmissible by operation of law as movable
property.
Where an agreement for license of copyright does not specify the period of license, the license
shall terminate after three years.

Rights of Actions and Remedies of exclusive licensee and Sub-licensee (Sec 34)
An exclusive licensee and exclusive sub-licensee shall have the same rights of action and be
entitled to the same remedies, as if the licence were an assignment and those rights and
remedies shall be concurrent with the rights and remedies of the owner of the copyright under
which the licence and sub-licence were granted.
Before an exclusive licensee or sub-licensee institutes proceedings, he shall give notice in
writing to the owner of the copyright concerned, of his intention to do so, and the owner may
intervene in such proceedings and recover any damages he may have suffered as a result of the
infringement concerned or a reasonable royalty to which he may be entitled.
INFRINGEMENT (sec 34)
Copyright or related rights shall be infringed by a person who, without the license of the owner
of the copyright or related rights;
(i) does, or causes to be done, an act the doing of which is controlled by the copyright or
related rights.
(ii) imports, or causes to be imported, otherwise than for his private and domestic use, an
article which he knows to be an infringing copy.

OFFENCES AND PENALTIES FOR INFRINGEMENT (Sec 38)

A person who, at a time when copyright or the right of a performer or producer subsists in a
work, knowingly;
(i) makes for sale or hire an infringing copy.
(ii) sells or lets for hire or, by way of trade, exposes or offers for sale an infringing copy;
(iii) distributes infringing copies;
(iv)possesses otherwise than for his private and domestic use, an infringing copy;
(v) imports into Kenya otherwise than for his or her private and domestic use an infringing
copy.
(vi)makes or has in his or her possession a contrivance used or intended to be used for the
purpose of making an infringing copy.
 (vii) causes a broadcast to be rebroadcast or transmitted in a diffusion service, knowing
that copyright subsists in the broadcast and that such rebroadcast or transmission
constitutes an infringement of the copyright.
(viii) removes or alters rights management information or imports or distributes, or makes
available to the public a copy of a work from which electronic rights management
information has been removed or altered.

DURATION OF COPYRIGHT
The minimum requirement under the Berne Convention is 50 years. The term is calculated
from the end of year of the author’s death which is more practical: you don’t have to enquire
into the day the author died, you only need to know the year.
PUBLIC DOMAIN (sec 44)
The following works shall belong to the public domain;
(a) works whose terms of protection have expired;
(b) works in respect of which authors have renounced their rights. (Renunciation shall be
in writing and made public but any such renunciation shall not be contrary to any
previous contractual obligation relating to the work.)

LIMITATIONS AND EXCEPTIONS TO RIGHTS

Types of Limitations
The first limitation is the exclusion from copyright protection of certain categories of works.
In some countries, works are excluded from protection if they are not fixed in tangible form.
Example; a work of choreography would only be protected once the movements were written
down in dance notation or recorded on videotape.
The second category of limitations on the rights of authors and other owners of copyright
concerns particular acts of exploitation normally requiring the authorization of the owner of
rights, which may under circumstances specified in the law, be done without authorization.

THE OCCUPATIONAL SAFETY AND HEALTH ACT,2007