(Being an appeal from the judgment of Hon. J.W. Mwangi delivered on 18.3.24 in Milimani MCCC No. E5453 of 2023)
JUDGMENT
The 1 st respondent (claimant in the lower court) filed a suit against the 2 nd respondent who successfully had the appellant, third party, enjoined into the suit. The suit against the appellant and the 2 nd respondent was for special damages as well as costs and interest in respect of a road traffic accident that occurred on the 26 th October 2020.
In her judgment delivered on 18 th March 2024, the learned magistrate entered judgment in favour of the 1 st respondent as against the appellant (3 rd party) as follows;
a) Liability – 100% against the third party
b) Special damages – Kshs. 152,162/-
c) Costs – Kshs. 40,000/-
Total – Kshs. 192,162/-
Aggrieved by the judgment of the learned magistrate on liability, the appellant appealed to the court on the following grounds as summarized:
i) That the learned trial adjudicator erred in law and in fact in failing to consider the evidence on record particularly police abstract and police officer’s testimony proving that m/v KBX 608R was neither owned nor insured by the appellant
The claimant’s (1 st respondent) case before the trial court was that on 26.10.2020, his authorized driver was driving m/v reg. no. KCR 630C along Ring Road in Kileleshwa when the 2 nd respondent’s m/v KBX 608R was driven negligently occasioning a collision as a result of which his motor vehicle was extensively damaged. The 2 nd respondent in his response to the claim pleaded and adduced evidence that his ownership of m/v KBX 608R ceased on or about 5.9.2018 when the said m/v was taken over by the appellant who was his erstwhile insurer after the m/v was involved in an accident on or about 28.7.2018 and was written off. He testified that he was paid Kshs. 391,500 for the said m/v by the appellant and he executed transfer documents in favour of the appellant. The appellant did not adduce evidence but relied heavily on the evidence of CW1, one P.C Bobby, who testified interalia that the driver of m/v KBX 608R which was undisputedly blamed for the accident had it insured by G.A. Insurance Co. Ltd.
APPELLANT’S SUBMISSIONS
The appellant submitted that the evidence including a police abstract produced as an exhibit showed that the m/v KBX 608R which was blamed for the accident was insured by G.A. Insurance Co. Ltd. That the said uncontroverted evidence exonerated the appellant from liability notwithstanding that it failed to adduce evidence in support of its case. It is the appellant’s case that the trial court failed to properly consider the evidence and thereby reached a conclusion that was against the weight of the evidence.
1 ST RESPONDENT’S SUBMISSIONS
The 1 st respondent opposed the appeal through written submissions. It was submitted on behalf of the 1 st respondent that the appellant was not enjoined as a third party for the reason of being the insurer of the subject motor vehicle at the time of the accident but for the reason that the salvage of m/v KBX 608R was taken over by the appellant from the 2 nd respondent after an accident in which the m/v was written off. That what transpired thereafter with the m/v was not within the knowledge of the 2 nd respondent and the learned magistrate could not be faulted for the findings.
ANALYSIS AND DETERMINATION
This being a first appeal I have the onerous task of reexamining and reevaluating the evidence before the trial court a fresh and come to my own conclusion while bearing in mind that unlike the trial court, I did not have the opportunity to hear and observe the witnesses testify.
See the case of Peter M. Kariuki v Attorney General (2014) eKLR.
I am required to satisfy myself that the conclusions reached by the trial adjudicator are consistent with the evidence.
This appeal turns on the issue whether the trial magistrate correctly found that the m/v KBX 608R whose driver/owner was blamed for the accident was owned by the appellant as at the time of the accident.
From the evidence presented before the trial magistrate, the 2 nd respondent owned m/v KBX 608R up until 28.7.2018 when he was involved in an accident along Kangundo road. The evidence which was not challenged was that the nature of the accident was such that the motor vehicle was extensively damaged and was written off by his erstwhile insurers (the appellant). The 2nd respondent’s evidence that he was paid a sum of Kshs. 391,500 by the appellant for compensation arising from loss of the motor vehicle is not disputed. The payment was made on condition that he transfers the subject m/v to the appellant.
The evidence that the 2 nd respondent surrendered the m/v to the appellant pursuant to which a discharge voucher was issued and signed by the appellant and 2 nd respondent was equally unchallenged. The 2nd respondent further testified that he surrendered the logbook to the appellant and thereafter ceased to have any interest in the subject m/v.
The learned adjudicator in a well-reasoned judgment correctly found that the 2 nd respondent had discharged the burden, on a balance of probabilities that the subject motor vehicle had been taken over by the appellant but not yet registered, to a de facto owner.
The mere fact that the subject motor vehicle was insured by G.A. Insurance as at the time of accident did not absolve the appellant of liability. The question before the court was not who was the insurer of the subject m/v at the time of the accident but who was the beneficial owner or possessing owner. The appellant had the opportunity to explain how the subject m/v which had been surrendered to it by the 2nd respondent ended up on the road or got to be insured by G.A. Insurance but they squandered the opportunity.
The finding of the learned adjudicator on liability was well reasoned and backed by the evidence on record. I find no reason to upset the same.
The upshot is that the appeal herein lacks merit and is dismissed with costs to the respondents.
DATE, SIGNED AND DELIVERED via Teams this 9 th JULY 2026
D.O. ONYANGO
JUDGE
1
JUDGMENT
The 1 st respondent (claimant in the lower court) filed a suit against the 2 nd respondent who successfully had the appellant, third party, enjoined into the suit. The suit against the appellant and the 2 nd respondent was for special damages as well as costs and interest in respect of a road traffic accident that occurred on the 26 th October 2020.
In her judgment delivered on 18 th March 2024, the learned magistrate entered judgment in favour of the 1 st respondent as against the appellant (3 rd party) as follows;
a) Liability – 100% against the third party
b) Special damages – Kshs. 152,162/-
c) Costs – Kshs. 40,000/-
Total – Kshs. 192,162/-
Aggrieved by the judgment of the learned magistrate on liability, the appellant appealed to the court on the following grounds as summarized:
i) That the learned trial adjudicator erred in law and in fact in failing to consider the evidence on record particularly police abstract and police officer’s testimony proving that m/v KBX 608R was neither owned nor insured by the appellant
The claimant’s (1 st respondent) case before the trial court was that on 26.10.2020, his authorized driver was driving m/v reg. no. KCR 630C along Ring Road in Kileleshwa when the 2 nd respondent’s m/v KBX 608R was driven negligently occasioning a collision as a result of which his motor vehicle was extensively damaged. The 2 nd respondent in his response to the claim pleaded and adduced evidence that his ownership of m/v KBX 608R ceased on or about 5.9.2018 when the said m/v was taken over by the appellant who was his erstwhile insurer after the m/v was involved in an accident on or about 28.7.2018 and was written off. He testified that he was paid Kshs. 391,500 for the said m/v by the appellant and he executed transfer documents in favour of the appellant. The appellant did not adduce evidence but relied heavily on the evidence of CW1, one P.C Bobby, who testified interalia that the driver of m/v KBX 608R which was undisputedly blamed for the accident had it insured by G.A. Insurance Co. Ltd.
APPELLANT’S SUBMISSIONS
The appellant submitted that the evidence including a police abstract produced as an exhibit showed that the m/v KBX 608R which was blamed for the accident was insured by G.A. Insurance Co. Ltd. That the said uncontroverted evidence exonerated the appellant from liability notwithstanding that it failed to adduce evidence in support of its case. It is the appellant’s case that the trial court failed to properly consider the evidence and thereby reached a conclusion that was against the weight of the evidence.
1 ST RESPONDENT’S SUBMISSIONS
The 1 st respondent opposed the appeal through written submissions. It was submitted on behalf of the 1 st respondent that the appellant was not enjoined as a third party for the reason of being the insurer of the subject motor vehicle at the time of the accident but for the reason that the salvage of m/v KBX 608R was taken over by the appellant from the 2 nd respondent after an accident in which the m/v was written off. That what transpired thereafter with the m/v was not within the knowledge of the 2 nd respondent and the learned magistrate could not be faulted for the findings.
ANALYSIS AND DETERMINATION
This being a first appeal I have the onerous task of reexamining and reevaluating the evidence before the trial court a fresh and come to my own conclusion while bearing in mind that unlike the trial court, I did not have the opportunity to hear and observe the witnesses testify.
See the case of Peter M. Kariuki v Attorney General (2014) eKLR.
I am required to satisfy myself that the conclusions reached by the trial adjudicator are consistent with the evidence.
This appeal turns on the issue whether the trial magistrate correctly found that the m/v KBX 608R whose driver/owner was blamed for the accident was owned by the appellant as at the time of the accident.
From the evidence presented before the trial magistrate, the 2 nd respondent owned m/v KBX 608R up until 28.7.2018 when he was involved in an accident along Kangundo road. The evidence which was not challenged was that the nature of the accident was such that the motor vehicle was extensively damaged and was written off by his erstwhile insurers (the appellant). The 2nd respondent’s evidence that he was paid a sum of Kshs. 391,500 by the appellant for compensation arising from loss of the motor vehicle is not disputed. The payment was made on condition that he transfers the subject m/v to the appellant.
The evidence that the 2 nd respondent surrendered the m/v to the appellant pursuant to which a discharge voucher was issued and signed by the appellant and 2 nd respondent was equally unchallenged. The 2nd respondent further testified that he surrendered the logbook to the appellant and thereafter ceased to have any interest in the subject m/v.
The learned adjudicator in a well-reasoned judgment correctly found that the 2 nd respondent had discharged the burden, on a balance of probabilities that the subject motor vehicle had been taken over by the appellant but not yet registered, to a de facto owner.
The mere fact that the subject motor vehicle was insured by G.A. Insurance as at the time of accident did not absolve the appellant of liability. The question before the court was not who was the insurer of the subject m/v at the time of the accident but who was the beneficial owner or possessing owner. The appellant had the opportunity to explain how the subject m/v which had been surrendered to it by the 2nd respondent ended up on the road or got to be insured by G.A. Insurance but they squandered the opportunity.
The finding of the learned adjudicator on liability was well reasoned and backed by the evidence on record. I find no reason to upset the same.
The upshot is that the appeal herein lacks merit and is dismissed with costs to the respondents.
DATE, SIGNED AND DELIVERED via Teams this 9 th JULY 2026
D.O. ONYANGO
JUDGE
1