By plaint dated 5 th May 2023, the 1 st respondent sued the appellant claiming a liquidated sum of Kshs 221,784.00 being costs of repairs, car hire, tracing fees, investigations fees and a copy of record, all being damages arising from an accident which occurred on 7-05-2020 involving the 1 st respondent’s motor vehicle registration number KCX 959B (hereinafter referred to as ‘KCX’) and the appellant’s motor vehicle registration number KCA 634M (hereinafter referred to as ‘KCA’). Although the suit was filed in the name of the 1 st respondent, it was a claim under the principle of subrogation by Cannon General Insurance Limited who were the insurers of KCX.
The appellant filed a defence dated 22 nd November 2023 in which it denied ownership of KCA and particulars of negligence attributed to it as well as the claimed damages. The appellant pleaded further that the suit was frivolous, vexatious and an abuse of the court process.
The record shows that the appellant later took out a third-party notice dated 12 th February 2024 against the 2 nd respondent which it claimed to have served but it did not elicit any response. In the third-party notice, the appellant pleaded that the 2 nd respondent was the legal owner of KCA and that he was under an obligation to indemnify it. The matter went to trial without participation of the 2 nd respondent and without there being a formal default or interlocutory judgment entered against him.
After the trial, the lower court found in favour of the 1 st respondent against the appellant and entered judgment as prayed. Aggrieved by the said judgment, the appellant has brought this appeal raising the following grounds;
1. THAT the trial court exhibited extreme bias to the prejudice of the appellant by failing to consider the appellant’s written submissions and determine all issues before the court in its judgement and thus occasioning a miscarriage of justice.
2. THAT the learned Magistrate erred in fact and law in finding that the 1 st respondent had proved its case on a balance of probability while relying squarely on uncorroborated evidence without testimony of the 1 st respondent in person, the resultant effect that the entire judgment on liability was erroneous in law.
3. THAT the trial court erred in law in dismissing the validity of a lease agreement because there was allegedly no “witness” and yet the validity was not in issue and further, the lessor and lessee had duly executed the agreement, which resulted into a miscarriage of justice.
4. THAT the learned trial Magistrate misdirected herself in law and fact by failing to appreciate that the third party (2 nd respondent) was to blame for the accident in accordance with the third party notice.
5. All in all, the learned trial Magistrate misdirected himself in law and fact by failing to address all the issues before it, which resulted in the miscarriage of justice.
This being a first appeal, this court is under an obligation to conduct it in a manner of a re-hearing where it should re-evaluate, re-analyze and re-consider the evidence produced before the trial court and come to its own independent conclusion but at the same time bear in mind that it did not take the evidence of the parties neither did it have the advantage of observing the demeanour of the witnesses and give due allowance for that. While restating this position in law, the Court of Appeal in John Teleyio Ole Sawoyo v David Omwenga Maobe [2013] KECA 138 (KLR) held that;
‘This being a first appeal we have the duty to reconsider both matters of fact and of law. On facts, we are duty bound to analyse the evidence afresh, re-evaluate it and arrive at our own independent conclusion but must bear in mind that the trial court had the advantage of hearing the witnesses testify and seeing their demeanour and should make allowance for the same.’
I have read through the grounds of appeal and submissions of the appellant and the 1 st respondent dated 11 th August 2025 and 15 th August 2025 respectively. The appellant disagrees with the trial court’s judgment on grounds that; there was no proof of occurrence of the accident, the trial court relied on hearsay evidence and the court erred in rejecting an agreement between the appellant and the 2 nd respondent in its decision on its third-party claim against the 2 nd respondent.
Third party proceedings are separate proceedings commenced by the defendant against the third party. The procedure demands that once third party proceedings are taken out, they operate mutatis mutandis to the procedure for suits between the plaintiff and the defendant. That is why once the third party enters appearance and files their defence, the court has powers to direct that the plaintiff’s case against the defendant be heard together with that between the defendant and the third party. Failure to do this would mean that the defendant’s case will be heard separately from compensation or indemnity by the third party to the defendant. That is in my view the purport of Order 1 Rule 22 of the Civil Procedure Rules which provides that;
‘If a third party enters an appearance pursuant to the third-party notice, the defendant giving the notice may apply to the court by summons in chambers for directions, and the court upon the hearing of such application may, if satisfied that there is a proper question to be tried as to the liability of the third party, order the question of such liability as between the third party and the defendant giving the notice, to be tried in such manner, at or after the trial of the suit, as the court may direct; and, if not so satisfied, may order such judgment as the nature of the case may require to be entered in favour of the defendant giving the notice against the third party.’
In this matter, the third party did not enter appearance or file defence. The appellant did not progress his case against the 2 nd respondent by applying for judgment against the third party. The court therefore had no case to determine between the appellant and the 2 nd respondent. That case was not ripe for determination and in my view the court could not on the basis of what was before it, make any binding finding against the 2 nd respondent as the 2 nd respondent was not a real party to the plaintiff’s case. In that case, this appeal must be considered in restriction to the 1 st respondent’s case against the appellant. I am persuaded by the findings of Honourable Justice F. Gikonyo in Joseph Mwangi Gitundu v Gateway Insurance Co Ltd [2015] KEHC 5025 (KLR) where he held that;
‘I note that the Defendant had applied through a Chamber Summons dated 17 th March 2010 for third party notice to issue upon the auctioneer C. K. GITAU t/a VENUS GENERAL MERCHANTS. They did not follow through on the process of third party proceedings. They are the Defendant herein and if they thought they are entitled to any contribution from the said auctioneer, they ought to have completed the process of third party proceedings. The right of subrogation would have been easily realized within these proceedings h ad third party proceedings been properly filed and pursued. Hence, and in view of what I have stated in the foregoing paragraphs, that line of defence taken by the Defendant fails.’
One Chris Kinyua Njeru a police officer attached to Ruiru police station was called as the 1 st respondent’s second witness. He testified that the 2 nd respondent was the one driving KCA at the time of the accident and explained that the said driver was blamed for changing lanes inappropriately. Before him, one Benjamin Ndula a recoveries assistant at Cannon General Insurance Ltd had told the court that they had brought the suit in the name of the 1 st respondent as her insurer under the doctrine of subrogation and proceed to produce ten exhibits.
The appellant’s witness was Alex Ndung’u Njuguna who stated that he was the appellant’s manager. He added that on 27-04-2020, the appellant leased KCA to the 2 nd respondent who was at the time in poultry business and other farm projects. In the said lease, the appellant would not be responsible for any loss or damage arising from the usage of the vehicle and that he was to indemnify the appellant against any claims, actions or suits arising from the use of the vehicle. He added that at the date of the accident, the vehicle was in the custody of the 2 nd respondent who was not their employee or agent and therefore the issue of vicarious liability did not arise.
He produced the agreement and receipts for payment of the hiring charges as exhibits. He added that the appellant was not aware of the accident until it was served with court summons. He added that after being served with summons, the appellant engaged the 2 nd respondent but he denied knowledge of the accident and insisted that the vehicle had been returned in good faith neither would its insurer take up the matter as the accident had not been reported.
The appellant has submitted that the court ignored its submissions on the whether the accident occurred and the fact that the 1 st respondent did not testify in person. I have looked at the judgment and in my view the court analysed the issues based on the evidence placed before her. She even made reference to having considered the submissions. There are no particular words or specific depth in which a trial court is required to demonstrate its analysis of the evidence and submissions of the parties.
Even if this court agreed that the trial Magistrate failed to consider the submissions as alleged, this court is satisfied that the evidence before the court was sufficient to prove occurrence of the accident. Documents produced by the appellant’s witnesses were proof that the accident occurred and the 1 st respondent’s motor vehicle was damaged.
On whether the failure by the 1 st respondent to personally testify rendered the suit fatal, this court finds the argument lacking basis. PW2 stated that he was testifying on behalf of the 1 st respondent’s insurer who was claiming restoration under the principle of subrogation. The principle of subrogation posits that the insurer gets into the issues of the insured after it has compensated the insurer where it assumes the rights of the insured including the right to bring suit against third parties for compensation. In such suits, the real party is the insurer although the same is brought in the name of the insured. In any event I do not see what the 1 st respondent would have said different from what the other witnesses stated. It was held in Akamba Public Road Services v Abdikadir Adan Galgalo [2016] KEHC 2339 (KLR) that;
‘An insurer invokes the doctrine of subrogation where it has compensated its insured of loss arising out of an insurance claim against a third party. In invoking its subrogation rights to recover monies it has paid to a third party on behalf of its insured, it steps into the shoes of its insured and assumes all the benefits, rights and remedies that the insured is entitled to.
An insurer institutes or defends a claim in its insured’s name because it cannot prosecute or defend such claim in its name. It provides legal representation to its insured and pays the legal costs for such legal representation.’
The appellant has also submitted that the police officer and the insurer’s employee were not witnesses to the accident and as such their testimony could not prove negligence. The police officer was clear that the vehicle was to blame. He described the circumstances of the accident, narrated how it occurred and gave reason for blaming KCA. It is not a must that the circumstances of the accident be proved by an eye witnesses. If the available evidence is enough to prove negligence on a balance of probabilities, the court would be justified to find in favour of the claimant.
It is true as submitted by the appellant that a police abstract is not proof of occurrence of the accident or negligence. However, every case must be determined on its merits and circumstances. In this case, the police officer did not only produce police abstract but also gave an account and reasons for blaming the appellant’s vehicle which emanated from conclusion of investigations. The appellant chose not to testify on the circumstances surrounding the accident and concentrated on denying the occurrence and passing any blame to the 2 nd respondent. This left the police account uncontroverted and in my view, the trial court made the correct decision based on the available evidence.
The appellant has raised issue with the trial court’s finding rejecting the agreement for lease of KCA between it and the 2 nd respondent. While rejecting the agreement, the court gave the reason that it was not signed before any witness. I am not aware of any law that requires that an agreement for lease or hire of a motor vehicle be executed before a witness. In my view, parties may enter into an agreement without having a witness as long as the same can be proved. The agreement had provided a space for a witness which was left blank but this alone does not vitiate or nullify it.
Requirement of a witness can only be mandatory where the law provides so. For instance, under Section 3(3) of the Law of Contract Act, an agreement for disposition of any interest in land must be signed by each party and each signature of the parties attested to by a witness. In the circumstances, I hold that the trial court erred in rejecting the agreement between the appellant and the 2 nd respondent on account of lack of attesting witness.
In surprising change of the course, the appellant has argued that the issue of the agreement was not pleaded and the court had no jurisdiction to make a decision on it. I say surprising because this line of submissions amounts to the appellant abandoning the 3 rd ground of appeal which questions the court’s finding on the validity of the agreement. If the court had no jurisdiction to determine the validity of the agreement, then the appellant had no business producing it in his evidence. It is my view that by testifying on the agreement and asking the court to rely on it in reaching its decision on liability against the third party and making submissions on the same, the appellant and indeed the 1 st respondent left the issue for the court’s determination. Where an issue that does not directly accrue from the pleadings is litigated over and clearly left to the court, the court cannot be said to have overstepped its mandate when it makes it an issue for determination. The Court of Appeal stated in David Sironga Ole Tukai v Francis Arap Muge & 2 others [2014] KECA 155 (KLR) that;
‘Later in GALAXY PAINTS CO LTD V FALCON GUARDS LTD [2000] 2 EA 385 , this Court reiterated that the issues for determination in a suit generally flowed from the pleadings and that a trial court could only pronounce judgment on the issues arising from the pleadings or such issues as the parties framed for the courts determination. The Court added that unless pleadings were amended, parties were confined to their pleadings.
The exception to the rule arises where the parties, in the course of the hearing, raise an issue that was not pleaded and leave the same to the court to decide.’
The next issue is whether the appellant discharged its duty to prove its case against the 2 nd respondent. I have stated that the appellant did not properly and sufficiently prosecute his case against the third party. This is however not to say that where there is no third party proceedings or poof of liability against a third part, the plaintiff’s must succeed. The plaintiff remains with the duty to prove negligence, ownership and in relevant cases, vicarious liability. In this matter and based on what I have stated earlier in this judgment, the 1 st respondent was able to prove negligence on the part of the 2 nd respondent who was the driver of the 1 st the appellant’s motor vehicle. What is left is determination of whether the appellant was vicariously liable for the acts of the 2 nd respondent.
The appellant has urged the court to find that the agreement he produced was sufficient to exonerate it from liability. Ownership of the vehicle is not in dispute. Whereas I acknowledge that the agreement was produced as an exhibit in this matter, it must be remembered that parties are bound by their pleadings and any evidence that contradicts or goes outside the scope of the pleadings must be ignored in the court’s final judgment.
In its nine paragraphs defence, the appellant did not plead the issue of the agreement or state that it had leased out the motor vehicle to the 2 nd respondent. All that the defence stated was denial of occurrence of the accident, ownership of the vehicle and the damages. When it came to the third party notice, the appellant simply stated that the 2 nd respondent was liable for the accident and that the 2 nd respondent was the legal owner of motor vehicle KCA 634M. There was no mention of the issues of leasing out the motor vehicle which would have notified the plaintiff of the kind of evidence the applicant intended to adduce. This is the purpose of pleadings.
In view of the above, it is my holding that the appellant could not rely on the agreement whose contents was not in resonance with what it had pleaded. The said agreement therefore carried no probative value in its case. The conclusion from the above is that, although I find that the trial Magistrate rejected the agreement for the wrong reasons, the agreement was inadmissible in evidence for reasons that it contradicted the appellant’s pleadings. Honourable Justice A.C. Mrima held in Migore v South Nyanza Sugar Co Ltd [2018] KEHC 5465 (KLR) that;
‘ It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded.’
What follows from the above discussion is that the appellant as the owner of the motor vehicle KCA which was being driven by the 2 nd respondent under its authority, was vicariously liable for the accident. If indeed the 2 nd respondent was liable to indemnify the appellant, it is at liberty to pursue the indemnity but not at the expence of the 1 st respondent.
Consequently, this appeal lacks merits and the same is hereby dismissed with costs.
Dated signed and delivered at Nairobi this 13 th day of March 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT .
Judgment delivered in presence of Mr. Oketch for the appellant and Mrs. Njuguna for the respondent.
2 | Page
The appellant filed a defence dated 22 nd November 2023 in which it denied ownership of KCA and particulars of negligence attributed to it as well as the claimed damages. The appellant pleaded further that the suit was frivolous, vexatious and an abuse of the court process.
The record shows that the appellant later took out a third-party notice dated 12 th February 2024 against the 2 nd respondent which it claimed to have served but it did not elicit any response. In the third-party notice, the appellant pleaded that the 2 nd respondent was the legal owner of KCA and that he was under an obligation to indemnify it. The matter went to trial without participation of the 2 nd respondent and without there being a formal default or interlocutory judgment entered against him.
After the trial, the lower court found in favour of the 1 st respondent against the appellant and entered judgment as prayed. Aggrieved by the said judgment, the appellant has brought this appeal raising the following grounds;
1. THAT the trial court exhibited extreme bias to the prejudice of the appellant by failing to consider the appellant’s written submissions and determine all issues before the court in its judgement and thus occasioning a miscarriage of justice.
2. THAT the learned Magistrate erred in fact and law in finding that the 1 st respondent had proved its case on a balance of probability while relying squarely on uncorroborated evidence without testimony of the 1 st respondent in person, the resultant effect that the entire judgment on liability was erroneous in law.
3. THAT the trial court erred in law in dismissing the validity of a lease agreement because there was allegedly no “witness” and yet the validity was not in issue and further, the lessor and lessee had duly executed the agreement, which resulted into a miscarriage of justice.
4. THAT the learned trial Magistrate misdirected herself in law and fact by failing to appreciate that the third party (2 nd respondent) was to blame for the accident in accordance with the third party notice.
5. All in all, the learned trial Magistrate misdirected himself in law and fact by failing to address all the issues before it, which resulted in the miscarriage of justice.
This being a first appeal, this court is under an obligation to conduct it in a manner of a re-hearing where it should re-evaluate, re-analyze and re-consider the evidence produced before the trial court and come to its own independent conclusion but at the same time bear in mind that it did not take the evidence of the parties neither did it have the advantage of observing the demeanour of the witnesses and give due allowance for that. While restating this position in law, the Court of Appeal in John Teleyio Ole Sawoyo v David Omwenga Maobe [2013] KECA 138 (KLR) held that;
‘This being a first appeal we have the duty to reconsider both matters of fact and of law. On facts, we are duty bound to analyse the evidence afresh, re-evaluate it and arrive at our own independent conclusion but must bear in mind that the trial court had the advantage of hearing the witnesses testify and seeing their demeanour and should make allowance for the same.’
I have read through the grounds of appeal and submissions of the appellant and the 1 st respondent dated 11 th August 2025 and 15 th August 2025 respectively. The appellant disagrees with the trial court’s judgment on grounds that; there was no proof of occurrence of the accident, the trial court relied on hearsay evidence and the court erred in rejecting an agreement between the appellant and the 2 nd respondent in its decision on its third-party claim against the 2 nd respondent.
Third party proceedings are separate proceedings commenced by the defendant against the third party. The procedure demands that once third party proceedings are taken out, they operate mutatis mutandis to the procedure for suits between the plaintiff and the defendant. That is why once the third party enters appearance and files their defence, the court has powers to direct that the plaintiff’s case against the defendant be heard together with that between the defendant and the third party. Failure to do this would mean that the defendant’s case will be heard separately from compensation or indemnity by the third party to the defendant. That is in my view the purport of Order 1 Rule 22 of the Civil Procedure Rules which provides that;
‘If a third party enters an appearance pursuant to the third-party notice, the defendant giving the notice may apply to the court by summons in chambers for directions, and the court upon the hearing of such application may, if satisfied that there is a proper question to be tried as to the liability of the third party, order the question of such liability as between the third party and the defendant giving the notice, to be tried in such manner, at or after the trial of the suit, as the court may direct; and, if not so satisfied, may order such judgment as the nature of the case may require to be entered in favour of the defendant giving the notice against the third party.’
In this matter, the third party did not enter appearance or file defence. The appellant did not progress his case against the 2 nd respondent by applying for judgment against the third party. The court therefore had no case to determine between the appellant and the 2 nd respondent. That case was not ripe for determination and in my view the court could not on the basis of what was before it, make any binding finding against the 2 nd respondent as the 2 nd respondent was not a real party to the plaintiff’s case. In that case, this appeal must be considered in restriction to the 1 st respondent’s case against the appellant. I am persuaded by the findings of Honourable Justice F. Gikonyo in Joseph Mwangi Gitundu v Gateway Insurance Co Ltd [2015] KEHC 5025 (KLR) where he held that;
‘I note that the Defendant had applied through a Chamber Summons dated 17 th March 2010 for third party notice to issue upon the auctioneer C. K. GITAU t/a VENUS GENERAL MERCHANTS. They did not follow through on the process of third party proceedings. They are the Defendant herein and if they thought they are entitled to any contribution from the said auctioneer, they ought to have completed the process of third party proceedings. The right of subrogation would have been easily realized within these proceedings h ad third party proceedings been properly filed and pursued. Hence, and in view of what I have stated in the foregoing paragraphs, that line of defence taken by the Defendant fails.’
One Chris Kinyua Njeru a police officer attached to Ruiru police station was called as the 1 st respondent’s second witness. He testified that the 2 nd respondent was the one driving KCA at the time of the accident and explained that the said driver was blamed for changing lanes inappropriately. Before him, one Benjamin Ndula a recoveries assistant at Cannon General Insurance Ltd had told the court that they had brought the suit in the name of the 1 st respondent as her insurer under the doctrine of subrogation and proceed to produce ten exhibits.
The appellant’s witness was Alex Ndung’u Njuguna who stated that he was the appellant’s manager. He added that on 27-04-2020, the appellant leased KCA to the 2 nd respondent who was at the time in poultry business and other farm projects. In the said lease, the appellant would not be responsible for any loss or damage arising from the usage of the vehicle and that he was to indemnify the appellant against any claims, actions or suits arising from the use of the vehicle. He added that at the date of the accident, the vehicle was in the custody of the 2 nd respondent who was not their employee or agent and therefore the issue of vicarious liability did not arise.
He produced the agreement and receipts for payment of the hiring charges as exhibits. He added that the appellant was not aware of the accident until it was served with court summons. He added that after being served with summons, the appellant engaged the 2 nd respondent but he denied knowledge of the accident and insisted that the vehicle had been returned in good faith neither would its insurer take up the matter as the accident had not been reported.
The appellant has submitted that the court ignored its submissions on the whether the accident occurred and the fact that the 1 st respondent did not testify in person. I have looked at the judgment and in my view the court analysed the issues based on the evidence placed before her. She even made reference to having considered the submissions. There are no particular words or specific depth in which a trial court is required to demonstrate its analysis of the evidence and submissions of the parties.
Even if this court agreed that the trial Magistrate failed to consider the submissions as alleged, this court is satisfied that the evidence before the court was sufficient to prove occurrence of the accident. Documents produced by the appellant’s witnesses were proof that the accident occurred and the 1 st respondent’s motor vehicle was damaged.
On whether the failure by the 1 st respondent to personally testify rendered the suit fatal, this court finds the argument lacking basis. PW2 stated that he was testifying on behalf of the 1 st respondent’s insurer who was claiming restoration under the principle of subrogation. The principle of subrogation posits that the insurer gets into the issues of the insured after it has compensated the insurer where it assumes the rights of the insured including the right to bring suit against third parties for compensation. In such suits, the real party is the insurer although the same is brought in the name of the insured. In any event I do not see what the 1 st respondent would have said different from what the other witnesses stated. It was held in Akamba Public Road Services v Abdikadir Adan Galgalo [2016] KEHC 2339 (KLR) that;
‘An insurer invokes the doctrine of subrogation where it has compensated its insured of loss arising out of an insurance claim against a third party. In invoking its subrogation rights to recover monies it has paid to a third party on behalf of its insured, it steps into the shoes of its insured and assumes all the benefits, rights and remedies that the insured is entitled to.
An insurer institutes or defends a claim in its insured’s name because it cannot prosecute or defend such claim in its name. It provides legal representation to its insured and pays the legal costs for such legal representation.’
The appellant has also submitted that the police officer and the insurer’s employee were not witnesses to the accident and as such their testimony could not prove negligence. The police officer was clear that the vehicle was to blame. He described the circumstances of the accident, narrated how it occurred and gave reason for blaming KCA. It is not a must that the circumstances of the accident be proved by an eye witnesses. If the available evidence is enough to prove negligence on a balance of probabilities, the court would be justified to find in favour of the claimant.
It is true as submitted by the appellant that a police abstract is not proof of occurrence of the accident or negligence. However, every case must be determined on its merits and circumstances. In this case, the police officer did not only produce police abstract but also gave an account and reasons for blaming the appellant’s vehicle which emanated from conclusion of investigations. The appellant chose not to testify on the circumstances surrounding the accident and concentrated on denying the occurrence and passing any blame to the 2 nd respondent. This left the police account uncontroverted and in my view, the trial court made the correct decision based on the available evidence.
The appellant has raised issue with the trial court’s finding rejecting the agreement for lease of KCA between it and the 2 nd respondent. While rejecting the agreement, the court gave the reason that it was not signed before any witness. I am not aware of any law that requires that an agreement for lease or hire of a motor vehicle be executed before a witness. In my view, parties may enter into an agreement without having a witness as long as the same can be proved. The agreement had provided a space for a witness which was left blank but this alone does not vitiate or nullify it.
Requirement of a witness can only be mandatory where the law provides so. For instance, under Section 3(3) of the Law of Contract Act, an agreement for disposition of any interest in land must be signed by each party and each signature of the parties attested to by a witness. In the circumstances, I hold that the trial court erred in rejecting the agreement between the appellant and the 2 nd respondent on account of lack of attesting witness.
In surprising change of the course, the appellant has argued that the issue of the agreement was not pleaded and the court had no jurisdiction to make a decision on it. I say surprising because this line of submissions amounts to the appellant abandoning the 3 rd ground of appeal which questions the court’s finding on the validity of the agreement. If the court had no jurisdiction to determine the validity of the agreement, then the appellant had no business producing it in his evidence. It is my view that by testifying on the agreement and asking the court to rely on it in reaching its decision on liability against the third party and making submissions on the same, the appellant and indeed the 1 st respondent left the issue for the court’s determination. Where an issue that does not directly accrue from the pleadings is litigated over and clearly left to the court, the court cannot be said to have overstepped its mandate when it makes it an issue for determination. The Court of Appeal stated in David Sironga Ole Tukai v Francis Arap Muge & 2 others [2014] KECA 155 (KLR) that;
‘Later in GALAXY PAINTS CO LTD V FALCON GUARDS LTD [2000] 2 EA 385 , this Court reiterated that the issues for determination in a suit generally flowed from the pleadings and that a trial court could only pronounce judgment on the issues arising from the pleadings or such issues as the parties framed for the courts determination. The Court added that unless pleadings were amended, parties were confined to their pleadings.
The exception to the rule arises where the parties, in the course of the hearing, raise an issue that was not pleaded and leave the same to the court to decide.’
The next issue is whether the appellant discharged its duty to prove its case against the 2 nd respondent. I have stated that the appellant did not properly and sufficiently prosecute his case against the third party. This is however not to say that where there is no third party proceedings or poof of liability against a third part, the plaintiff’s must succeed. The plaintiff remains with the duty to prove negligence, ownership and in relevant cases, vicarious liability. In this matter and based on what I have stated earlier in this judgment, the 1 st respondent was able to prove negligence on the part of the 2 nd respondent who was the driver of the 1 st the appellant’s motor vehicle. What is left is determination of whether the appellant was vicariously liable for the acts of the 2 nd respondent.
The appellant has urged the court to find that the agreement he produced was sufficient to exonerate it from liability. Ownership of the vehicle is not in dispute. Whereas I acknowledge that the agreement was produced as an exhibit in this matter, it must be remembered that parties are bound by their pleadings and any evidence that contradicts or goes outside the scope of the pleadings must be ignored in the court’s final judgment.
In its nine paragraphs defence, the appellant did not plead the issue of the agreement or state that it had leased out the motor vehicle to the 2 nd respondent. All that the defence stated was denial of occurrence of the accident, ownership of the vehicle and the damages. When it came to the third party notice, the appellant simply stated that the 2 nd respondent was liable for the accident and that the 2 nd respondent was the legal owner of motor vehicle KCA 634M. There was no mention of the issues of leasing out the motor vehicle which would have notified the plaintiff of the kind of evidence the applicant intended to adduce. This is the purpose of pleadings.
In view of the above, it is my holding that the appellant could not rely on the agreement whose contents was not in resonance with what it had pleaded. The said agreement therefore carried no probative value in its case. The conclusion from the above is that, although I find that the trial Magistrate rejected the agreement for the wrong reasons, the agreement was inadmissible in evidence for reasons that it contradicted the appellant’s pleadings. Honourable Justice A.C. Mrima held in Migore v South Nyanza Sugar Co Ltd [2018] KEHC 5465 (KLR) that;
‘ It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded.’
What follows from the above discussion is that the appellant as the owner of the motor vehicle KCA which was being driven by the 2 nd respondent under its authority, was vicariously liable for the accident. If indeed the 2 nd respondent was liable to indemnify the appellant, it is at liberty to pursue the indemnity but not at the expence of the 1 st respondent.
Consequently, this appeal lacks merits and the same is hereby dismissed with costs.
Dated signed and delivered at Nairobi this 13 th day of March 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT .
Judgment delivered in presence of Mr. Oketch for the appellant and Mrs. Njuguna for the respondent.
2 | Page