Employers Not Liable For Staff’s Personal Acts: Bm Security Limited Vs Joseph Macharia Kibira And Another

Introduction

In recent legal developments, the Court of Appeal in Nakuru, Kenya, in the case of BM Security Limited v Joseph Macharia and one other [2025] has clarified the boundaries of employer liability concerning the personal actions of employees. The judgment reinforces the principle that employers are not automatically liable for wrongful acts committed by employees if such acts fall outside the scope of employment and are undertaken for personal gain.

Background of the Case

BM security Limited employed a driver responsible for responding to system alarms. On the material day, while driving the company’s vehicle, the driver stopped and invited Joseph, a third party, into the vehicle under the condition that he would buy ‘tea’ in exchange for the ride. While enroute to Nakuru, the vehicle veered off the road and overturned at Elburgon, causing injuries to the passenger.

The passenger filed a suit against the driver for negligence, arguing that since the driver was in the course of his employment, BM Security should be held vicariously liable for his injuries.

Trial Court’s Decision

BM Security contended that the driver was not acting within the scope of his employment, as he had been expressly prohibited from carrying unauthorized passengers. The company further highlighted that its vehicles bore branding explicitly stating “no unauthorized passengers in the vehicle”.

The trial court ruled in favour of the employer, holding that the driver had acted for his own personal interest, and that Joseph was aware the vehicle was not a public service vehicle. Therefore, the employer was absolved of liability.

First Appeal:

Being aggrieved by the Trial Court’s decision, Joseph lodged an appeal in the High Court on the grounds that the trial magistrate erred in absolving the employer from liability. The High Court overturned the lower court’s decision, finding that the driver’s employment contract had no explicit clause barring the driver from carrying passengers.

Additionally, the court reasoned that even if such a clause existed, Joseph had no knowledge of it. Consequently, BM Security was held vicariously liable for the driver’s negligence.

Second Appeal:

Aggrieved, BM Security lodged an appeal on the ground that the learned judge erred in finding BM Security liable for injuries sustained by the passenger notwithstanding the fact that the driver was acting for his own benefit and outside the scope of his employment.

The court of Appeal applied the test formulated in the South African Case of Minister of Police vs Rable which assesses employer liability based on two key factors:

1. The subjective test-did the employee act wrongfully solely for his own purpose?

In the instant case, the employee gave a lift for his own benefit.

2. The objective test-if the employee was pursuing affairs in his own interests, was such deviation connected closely to his employment and the business of the employer?

If the employee’s unlawful act is not even in the slightest way directed to furthering the employer’s business, but his own interests, then the employer is not vicariously liable.

In the instant case, the employee was using the employer’s time and vehicle for his own purposes and personal gain. Since his actions did not further the employer’s interests, BM Security could not be held vicariously liable.

Additionally, the court held that the admission by the passenger that the vehicle was branded and that he knew it was not a public service vehicle implied that he had no reason to believe the employer had any authority to carry passengers.

The Court of Appeal reinstated the trial court’s decision, holding that the driver was not acting within the scope of his employment and thus BM Security was not liable for the passenger’s injuries.

Conclusion

Employers are not automatically liable for wrongful acts committed by their employees if such acts are outside the scope of employment and undertaken for personal gain. This decision underscores the principle that for an employer to be held vicariously liable, the employee's wrongful act must occur within the course of employment. The court emphasized that if an employee uses company resources for personal benefit, deviating from their official duties, the employer cannot be held responsible for the employee's misconduct.

Employers should ensure clear policies, agreements and training are in place to delineate acceptable conduct and mitigate potential liabilities arising from employees' personal actions.

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