A tort under Kenya law is a civil wrong.The law of tort covers a wide range of situations, including such diverse claims as those of a passenger injured in a road accident, a patient injured by a negligent doctor, a pop star libelled by a newspaper, a citizen wrongfully arrested by the police, and a landowner whose land has been trespassed on. As a result, it is difficult to pin down a definition of a tort; but, in broad terms, a tort occurs where there is breach of a general duty fixed by civil law. When a tort is committed, the Kenya law allows the victim to claim money, known as damages, to compensate for the commission of the tort. This is paid by the person who committed the tort (known as the tortfeasor). Other remedies may be available as well or instead. In some cases, the victims will only be able to claim damages if they can prove that the tort caused some harm, but in others, which are described as actionable per se, they only need to prove that the relevant tort has been committed. For example, landowners can claim damages in tort from someone trespassing on their land, even though no harm has been done by the trespasser.
Comparing tort with
other legal wrongs
Torts and crimes
A crime under Kenya law is a wrong which is punished by the state; in most
cases, the parties in the case are the wrongdoer and the state (called the Crown for these
purposes), and the primary aim is to punish
the wrongdoer. By contrast, a tort action is between the
wrongdoer and the victim, and the aim is
to compensate the victim for the harm done. It is therefore
incorrect to say that someone has been
prosecuted for negligence, or found guilty of libel, as these
terms relate to the criminal law.
Journalists frequently make this kind of mistake, but law
students should not!
There are, however, some areas in which the distinctions are
blurred. In some tort cases, damages
may be set at a high rate in order to punish the wrongdoer,
while in criminal cases, the range of
punishments now includes provision for the wrongdoer to
compensate the victim financially
(though this is still not the primary aim of criminal
proceedings, and the awards are usually a great
deal lower than would be ordered in a tort action).
There are cases in which the same incident may give rise to
both criminal and tortious pro-
ceedings. An example would be a car accident, in which the
driver might be prosecuted by the
state for dangerous driving, and sued by the victim for the
injuries caused.
Torts and breaches of
contract
A tort under Kenya law involves breach of a duty which is fixed by the law,
while breach of contract is a breach of a duty which the party has voluntarily
agreed to assume. For example, we are all under a duty not to trespass on other
people’s land, whether we like it or not, and breach of that duty is a tort.
But if I refuse to dig your garden, I
can only be in breach of a legal duty if I had already agreed to do so by means
of a contract.
In contract, duties are usually only owed to the other
contracting party, whereas in tort, they are
usually owed to people in general. While the main aim of
tort proceedings is to compensate for
harm suffered, contract aims primarily to enforce promises.
Again, there are areas where these distinctions blur. In
some cases liability in tort is clarified by
the presence of agreement – for example, the duty owed by an
occupier of land to someone who
visits the land is greater if the occupier has agreed to the
visitor’s presence, than if the ‘visitor’ is
Comparing tort with other legal wrongs