The general rule is that any person may sue or be sued in tort. All persons are subject to the same laws. However, some special rules apply in certain circumstances which restrict, forbid or qualify the right to sue or be sued. It means certain persons cannot sue, while some other persons cannot be sued.
Capacity means the capacity of parties or persons to sue or to be sued in law of torts. The capacity of various persons in the law of torts is explained as under:
The Government Proceedings Act (Cap 40) makes the Government subject to liabilities in tort as if it were a private person mf full age and capacity. Section 4 (1) of this Act provides that the Government is liable.
a) in respect of torts committed its servants or agents;
b) in respect of any breach of those dutie3 which a person owes to his servants or agents at common law reason of being their employer; and
c) in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property.
The Government is also liable for statuary torts i.e. torts arising from breach of a duty imposed statute. However, the Government is not liable for anything done any person when discharging any responsibilities of a judicial process (Sec. 4 (5).The Government is not also liable for trots committed public officers who are appointed and paid local authorities, or members of public corporations like Kenya Railways, Maize and Produce Board of Kenya e.t.c.
Infants and Minors
At a general rule minority is no defense in tort. Infants can sue and `e sued in the same way as any other person. However, the age of an infant may be relevant in some torts where intentions, malice, or negligence of the wrongdoer are the main cause of the tort. In the case of negligence, the infant may not have reached the stage of mental development where it could be said that he should be found legally responsible for his negligent acts. A child may
be also guilty of negligence if old enough to take precautions for his own safety.
Burnard v. Haggis, (1863)
A minor hired a horse for riding and was told the owner not to jump over it. But he jumped the horse and injured it.
Held: The minor was liable for his tort which was of independent of the contract.
Generally, a parent or guardian is not liable for the torts of his children unless he authorizes the tort. But a parent or guardian is liable for torts committed children in negligence.
Bebee v. Sales, (1916)
A parent permitted his son aged 15 to remain in possession of a shotgun, with which the son had already caused harm and in respect on which complaints had been made.
Held: the father was liable for injury to another boy’s eye
Husband and Wife
The position of husbands and wives in tort is covered two English statutes. These are: the Married Women’s Property Act 1882 and the Law Reform (Married Women and Tortfeasors) Act, 1835. The former Act is a statute of general application is Kenya. The latter statute applies in Kenya to the extent of paragraphs (b) and (c) of question 1.
A married woman is liable in tort and may sue or be sued in tort in the same way as though she were a female sole (i.e. a single of unmarried woman). A wife can sue her husband in tort for the protection of her own property.
The Constitution of Kenya (Kenya 14) provides that the President of Kenya is not “liable to any proceedings whatsoever in any court.”It means that no civil or criminal proceedings can be instituted against the President while he is in office.
Heads of State and Diplomats
The Heads of foreign states, diplomats of foreign missions and certain other persons connected to them are immune from the jurisdiction of the local courts. Their immunity is provided the Vienna Convention of Diplomatic Relations, signed in 1961, the relevant articles of which are given the force of law in Kenya “The Privileges and Immunities Act (cap. 179)”.
The accredited diplomats and their staff families enjoy immunity from the criminal and (subject to specified exceptions) from the civil and administrative jurisdiction of the local courts. The immunity does not extend to Kenyans who are employed diplomatic missions. Representatives of the United Nations Organization and its specialized agencies can also claim diplomatic immunity. Although the diplomats and their staff cannot be sued under the law of tort but it is always open to the Ministry of Foreign Affairs to declare a diplomat ‘persona non grata’, thererequiring his removal from Kenya.
The corporations can sue and be sued in their own names. They are liable to actions in tort.
A corporation is also liable for torts committed its servants and agents. But if a servant of a corporation commits a tort which is ‘ultra vires’ (beyond powers) then the corporation is not liable. Similarly, a corporation is not liable for some torts of personal nature e.g. personal defamation, battery e.t.c.
The trade unions have capacity to sue in tort but actions against them in tort are limited. Section 23 of the Trade Unions Act (Cap. 233) provides that no action shall be brought against a trade union for torts committed its members or officials in respect of any act done in contemplation or in furtherance of a trade dispute. For example, if a trade union calls a strike, it cannot be sued an employer for the tort of inducing a breach of contract.
Persons of Unsound Mind
These are generally liable in tort unless intent is a necessary element and their condition is such that they could not have formed such intent.
Morriss v. Marsden, (1952)
Defendant took room at a Brighton hotel. While there he attacked the manager of the hotel (plaintiff). It was established that defendant was suffering from disease of the mind at the time of the attack; that he knew the nature and quality of his act, but he did not know that what he was doing was wrong. Held: That as defendant knew the nature and quality of his act he was liable in tort for the assault and battery. It was immaterial that he did not know that what he was doing was wrong.
Aliens or Non-Citizens
An alien is under no disability and can sue and be sued. However an enemy alien cannot sue, but if sued can defend himself.
Judicial officers are protected from civil liability for any act done or ordered them in the discharge of their judicial functions. Thus, where a judge or magistrate utters words which tend to reflect on a person’s reputation, or orders a party’s property to be attached in satisfaction of a judgment-debt, no action can respectively be brought against him for trespass. Besides judicial officers, officers of the court are also protected against civil liability for acts done in pursuance of a judicial order or warrant. This means that a court broker cannot be sued for attaching property under a warrant dully issued court, as long as he acts within the powers conferred on him the warrant. The protection to judicial officers and officer of court is afforded the Judicature Act (cap.8) Section 6.