Occupiers' Liability Act

LAWS OF KENYA
THE OCCUPIERS' LIABILITY ACT
CAP. 34
Revised and published by the National Council for Law Reporting
with the authority of the Attorney-General as gazetted by the Government Printer
www.kenyalaw.org

Kenya
Occupiers' Liability Act
Cap. 34
Legislation as at 12 July 1966
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Share widely and freely.

Occupiers' Liability Act (Cap. 34)
Contents
Part I – PRELIMINARY ....................................................................................................................................................................................... 1
1. Short title .................................................................................................................................................................................................... 1
Part II – LIABILITY IN TORT ............................................................................................................................................................................ 1
2. Rules as to duty of occupier of premises to visitors .................................................................................................................. 1
3. Extent of occupier’s ordinary duty ..................................................................................................................................................... 1
4.

................................................................................................................................................. 1
4.

Effect of contract on occupier’s liability to third party .............................................................................................................. 2
5. Landlord’s liability in virtue of obligation to repair ................................................................................................................... 3
Part III – LIABILITY IN CONTRACT ................................................................................................................................................................ 4
6. Implied term in contracts ..................................................................................................................................................................... 4
Part IV – GENERAL .............................................................................................................................................................................................. 4
7. Application to Government ................................................................................................................................................................... 4

.................................................................................................................................................... 4

Occupiers' Liability Act (Cap. 34) Kenya
OCCUPIERS' LIABILITY ACT
CAP. 34
Assented to on 24 August 1962
Commenced on 1 January 1963
[Amended by Kenya (Amendment of Laws) (Written Laws)
Order, 1963 (Legal Notice 2 of 1964) on 12 December 1963]
[Amended by Statute Law (Miscellaneous Amendments) Act, 1966 (Act No. 21 of 1966) on 12 July 1966]
An Act to amend the law as to the liability of occupiers and others for injury or damage resulting to
persons or goods lawfully on any land or other property from dangers due to the state of the property or
to things done or omitted to be done there
Part I – PRELIMINARY
1. Short title
This Act may be cited as the Occupiers’ Liability Act. Part II – LIABILITY IN TORT
2. Rules as to duty of occupier of premises to visitors
(1) The rules enacted by sections 3 and 4 of this Act shall have effect, in place of the rules of the
common law, to regulate the duty which an occupier of premises owes to his visitors in respect of
dangers due to the state of the premises or to things done or omitted to be done on them.

h an occupier of premises owes to his visitors in respect of
dangers due to the state of the premises or to things done or omitted to be done on them.

(2) The rules so enacted shall regulate the nature of the duty imposed by law in consequence of a
person’s occupation or control of premises and of any invitation or permission he gives (or is to be
treated as giving) to another to enter or use the premises, but they shall not alter the rules of the
common law as to the persons on whom a duty is so imposed or to whom it is owed; and accordingly
for the purpose of the rules so enacted the persons who are to be treated as an occupier and as his
visitors are the same as the persons who would at common law be treated as an occupier and as his
invitees or licensees.

ted as an occupier and as his
visitors are the same as the persons who would at common law be treated as an occupier and as his
invitees or licensees.

(3) The rules so enacted in relation to an occupier of premises and his visitors shall also apply, in
like manner and to the like extent as the principles applicable at common law to an occupier of
premises and his invitees or licensees would apply, to regulate—
(a) the obligations of a person occupying or having control over any fixed or movable structure,
including any vessel, vehicle or aircraft; and
(b) the obligations of a person occupying or having control over any premises or structure in
respect of damage to property, including the property of persons who are not themselves his
visitors. [L.N. 2/1964.]
3. Extent of occupier’s ordinary duty
(1) An occupier of premises owes the same duty, the common duty of care, to all his visitors, except in
so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors
by agreement or otherwise. 1

itors, except in
so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors
by agreement or otherwise. 1

Occupiers' Liability Act (Cap. 34) Kenya
(2) For the purposes of this Act, “the common duty of care” is a duty to take 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 purposes for which he is invited or permitted by the occupier to be there. (3) The circumstances relevant for the present purpose include the degree of care, and of want of care,
which would ordinarily be looked for in such a visitor, so that (for example) in proper cases—
(a) an occupier must be prepared for children to be less careful than adults; and
(b) 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.

ercise 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.

(4) In determining whether the occupier of premises has discharged the common duty of care to a
visitor, regard is to be had to all the circumstances, so that (for example)—
(a) where damage is caused to a visitor by a danger of which he had been warned by the
occupier, the warning is not to be treated without more as absolving the occupier from
liability, unless in all the circumstances it was enough to enable the visitor to be reasonably
safe; and
(b) 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 to be treated without more as answerable for the danger if in all the
circumstances he had acted reasonably in entrusting the work to an independent contractor
and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the
contractor was competent and that the work had been properly done.

ken such steps (if any) as he reasonably ought in order to satisfy himself that the
contractor was competent and that the work had been properly done.

(5) The common duty of care does not impose on an occupier any obligation to a visitor in respect
of risks willingly accepted as his by the visitor (the question whether a risk was so accepted to
be decided on the same principles as in other cases in which one person owes a duty of care to
another). (6) For the purposes of this section, persons who enter premises for any purpose in the exercise of a
right conferred by law are to be treated as permitted by the occupier to be there for that purpose,
whether they in fact have his permission or not. [L.N. 2/1964.]
4. Effect of contract on occupier’s liability to third party
(1) Where an occupier of premises is bound by contract to permit persons who are strangers to the
contract to enter or use the premises, the duty of care which he owes to them as his visitors cannot
be restricted or excluded by that contract, but (subject to any provision of the contract to the
contrary) shall include the duty to perform his obligations under the contract, whether undertaken
for their protection or not, in so far as those obligations go beyond the obligations otherwise
involved in that duty.

he contract, whether undertaken
for their protection or not, in so far as those obligations go beyond the obligations otherwise
involved in that duty.

(2) A contract shall not by virtue of this section have the effect, unless it expressly so provides, of
making an occupier who has taken all reasonable care answerable to strangers to the contract for
dangers due to the faulty execution of any work of construction, maintenance or repair or other like
operation by persons other than himself, his servants and persons acting under his direction and
control. (3) In this section, “stranger to the contract” means a person not for the time being entitled to the
benefit of the contract as a party to it or as the successor by assignment or otherwise of a party to it,
and accordingly includes a party to the contract who has ceased to be so entitled. (4) Where by the terms or conditions governing any tenancy (including a statutory tenancy which does
not in law amount to a tenancy) either the landlord or the tenant is bound, though not by contract,
2

enancy (including a statutory tenancy which does
not in law amount to a tenancy) either the landlord or the tenant is bound, though not by contract,
2

Occupiers' Liability Act (Cap. 34) Kenya
to permit persons to enter or use premises of which he is the occupier, this section shall apply as if
the tenancy were a contract between the landlord and the tenant. (5) This section, in so far as it prevents the common duty of care from being restricted or excluded,
applies to contracts entered into and tenancies created before the commencement of this Act, as
well as to those entered into or created after its commencement; but, in so far as it enlarges the
duty owed by an occupier beyond the common duty of care, it shall have effect only in relation to
obligations which are undertaken after that commencement or which are renewed by agreement
(whether express or implied) after that commencement. [L.N. 2/1964.]
5.

which are undertaken after that commencement or which are renewed by agreement
(whether express or implied) after that commencement. [L.N. 2/1964.]
5.

Landlord’s liability in virtue of obligation to repair
(1) Where premises are occupied by any person under a tenancy which puts on the landlord an
obligation to that person for the maintenance or repair of the premises, the landlord shall owe to all
persons who or whose goods may from time to time be lawfully on the premises the same duty, in
respect of dangers arising from any default by him in carrying out that obligation, as if he were an
occupier of the premises and those persons or their goods were there by his invitation or permission
(but without any contract). (2) Where premises are occupied under a subtenancy, subsection (1) of this section shall apply to any
landlord of the premises (whether the immediate or a superior landlord) on whom an obligation
to the occupier for the maintenance or repair of the premises is put by the subtenancy, and for
that purpose any obligation to the occupier which the subtenancy puts on a mesne landlord of the
premises, or is treated by virtue of this provision as putting on a mesne landlord, shall be treated
as put by it also on any landlord on whom the mesne landlord’s tenancy puts the like obligation
towards the mesne landlord.

landlord, shall be treated
as put by it also on any landlord on whom the mesne landlord’s tenancy puts the like obligation
towards the mesne landlord.

(3) For the purposes of this section, where premises comprised in a tenancy (whether occupied
under that tenancy or under a subtenancy) are put to a use not permitted by the tenancy, and the
landlord of whom they are held under the tenancy is not debarred by his acquiescence or otherwise
from objecting or from enforcing his objection, then no persons or goods whose presence on the
premises is due solely to that use of the premises shall be deemed to be lawfully on the premises
as regards that landlord or any superior landlord of the premises, whether or not they are lawfully
there as regards an inferior landlord. (4) For the purposes of this section, a landlord shall not be deemed to have made default in carrying
out any obligation to the occupier of the premises unless his default is such as to be actionable at
the suit of the occupier or, in the case of a superior landlord whose actual obligation is to an inferior
landlord, his default in carrying out that obligation is actionable at the suit of the inferior landlord.

rd whose actual obligation is to an inferior
landlord, his default in carrying out that obligation is actionable at the suit of the inferior landlord.

(5) This section shall not put a landlord of premises under a greater duty than the occupier to persons
who or whose goods are lawfully on the premises by reason only of the exercise of a right of way. (6) Nothing in this section shall relieve a landlord of any duty which he is under apart from this
section. (7) For the purposes of this section, obligations imposed by any enactment in virtue of a tenancy shall
be treated as imposed by the tenancy, and “tenancy” includes a statutory tenancy which does not
in law amount to a tenancy, and includes also any contract conferring a right of occupation, and
“landlord” shall be construed accordingly. (8) This section applies to tenancies created before the commencement of this Act, as well as to those
created after its commencement. 3

accordingly. (8) This section applies to tenancies created before the commencement of this Act, as well as to those
created after its commencement. 3

Occupiers' Liability Act (Cap. 34) Kenya
Part III – LIABILITY IN CONTRACT
6. Implied term in contracts
(1) Where persons enter or use, or bring or send goods to, any premises in exercise of a right conferred
by contract with a person occupying or having control of the premises, the duty he owes them in
respect of dangers due to the state of the premises or to things done or omitted to be done on them,
in so far as the duty depends on a term to be implied in the contract by reason of its conferring that
right, shall be the common duty of care. (2) Subsection (1) of this section shall apply to fixed and movable structures as it applies to premises. (3) This section does not affect the obligations imposed on a person by or by virtue of any contract for
the hire of, or for the carriage for reward of persons or goods in, any vehicle, vessel, aircraft or other
means of transport, or by or by virtue of any contract of bailment. (4) This section does not apply to contracts entered into before the commencement of this Act. [L.N. 2/1964.]
Part IV – GENERAL
7.

ntract of bailment. (4) This section does not apply to contracts entered into before the commencement of this Act. [L.N. 2/1964.]
Part IV – GENERAL
7.

Application to Government
This Act shall bind the Government, but as regards the Government’s liability in tort shall not bind the
Government further than the Government is made liable in tort by the Government Proceedings Act (Cap. 40) and that Act and in particular section 4 of it shall apply in relation to duties under sections 3, 4 and 5
of this Act as statutory duties. [L.N. 2/1964, Act No. 21 of 1966, First Sch.]
4