A. INTRODUCTION
1. This is a first appeal from the judgment of the Chief Magistrate's Court at Bungoma (Hon. Tom Mark Orlando, Principal Magistrate) delivered on 7th August 2024 in Bungoma CMCC No. 31 of 2023 (originally instituted as Civil Suit No. 31 of 2022), in which the trial Court found the 1st Defendant, Sunipu Limited, and the 2nd Defendant, Nzoia Sugar Company Limited, jointly and 100% liable to the Plaintiff, Isaac Barasa Makokha, for injuries sustained in a road traffic accident, and entered judgment for Kshs. 464,550 (comprising Kshs. 450,000 general damages and Kshs. 14,550 special damages), together with costs and interest.
2. The 2nd Defendant, Nzoia Sugar Company Limited, being aggrieved, filed a Notice of Appeal dated 16th October 2024 and a Memorandum of Appeal dated 2nd September 2024, and appears before this Court as Appellant. Isaac Barasa Makokha, the original Plaintiff, is the Respondent. Sunipu Limited, the 1st Defendant at trial, has not appealed and is joined to this appeal as Interested Party only.
3. The Appellant filed written submissions dated 7th October 2025 through the firm of Walubengo, Waningilo & Co. Advocates, in support of its Appeal. The Respondent filed written submissions dated 11th December 2025 through the firm of M/S Namatsi & Co. Advocates, opposing the appeal. The Interested Party, Sunipu Limited, has filed no response, submissions, or other document opposing or supporting the appeal at any stage.
B. BRIEF FACTS
4. The Respondent's case at trial, as pleaded and testified to as PW1, was that on 3rd September 2021 at about 6.30 p.m., while riding a bicycle along the Nzoia–Bukembe road near the railway crossing, he was struck from behind by motor vehicle registration number KBR 764F, negligently driven, and sustained a mild head injury, cut wounds to the forehead, parietal scalp and left thumb, a blunt chest injury, and a fracture of the left ankle.
5. The Respondent sued Sunipu Limited as 1st Defendant and Nzoia Sugar Company Limited as 2nd Defendant, without identifying the driver, on the footing that one or other of the two corporate defendants owned and/or was responsible for the vehicle.
6. Sunipu Limited's defence, in substance, was that the accident never occurred and that the police abstract relied upon by the Respondent was not genuine. Nzoia Sugar Company Limited's defence was that it did not own, insure, or control the vehicle; that the registered owner was Sunipu Limited; and that, in any event, Sunipu Limited was an independent contractor engaged to transport cane under a written agreement making Sunipu Limited answerable for loss, injury or damage caused by its own vehicles, workers or agents to third parties.
C. EVIDENCE ADDUCED AT TRIAL
7. The evidence at trial, material to the issues arising on this appeal, may be summarised as follows.
(a) The Respondent's witnesses
8. PW1, Isaac Barasa Makokha (the Respondent), adopted his witness statement as evidence-in-chief and produced his identity document, authority to act, demand notice, medical report, P3 form, treatment notes, motor vehicle search, police abstract and payment receipts. In cross-examination by Counsel for the 1st Defendant, he maintained that he was cycling from Nzoia towards Bukembe when the vehicle struck him from behind, that it stopped briefly before the driver sped off, and that he did not know the driver and had accordingly sued “the company.” He confirmed that the motor vehicle search he had obtained showed the vehicle to be an Isuzu Pickup — not the Toyota he had believed — registered to Sunipu Limited, and stated, “I know the owner of the vehicle is Sunipu Limited.” He said the accident was reported the same day at Bukembe police station and that the abstract was issued some seven months later. In cross-examination by Counsel for the 2nd Defendant, he stated that the vehicle was travelling at a moderate, not high, speed, since it stopped on impact.
9. PW2, Jackline Were, a police officer attached to the traffic department at Bungoma police station, testified that Bukembe is a police post under Bungoma station; that she did not personally investigate the accident but issued the police abstract (produced as Exhibit 10) after perusing the Bukembe occurrence book; and that abstracts, although accidents may be booked at Bukembe, are issued only at Bungoma station. She named the officer who originally booked the accident as PC Mwangi. In cross-examination, she was unable to produce the investigating officer's own statement, confirmed that “Onduso” held the rank of PC and not the rank appearing elsewhere in the record, and conceded that the abstract's description of the vehicle as a “Toyota Pick Up” was a mistake, the vehicle in fact being an Isuzu Pick Up. She had no accident sketch and did not have the occurrence book or extract with her in Court.
10. PW3, Dr Joseph Sokobe, the doctor who examined the Respondent, produced and confirmed his medical report of 24th November 2022. In cross-examination by Counsel for the 1st Defendant, he stated that he had examined the Respondent almost a year after the accident and found that he had by then fully recovered. He was recalled at the close of the Respondent's case, at the request of Counsel for the 2nd Defendant, and testified: “The owner of the motor vehicle is Sunipu Ltd care of Nzoia Sugar Company. I was told by the administration in the company that the vehicle belonged to Nzoia.”
11. PW4, Elias Adoka, a clinical officer at Bungoma County Referral Hospital, testified that he signed the Respondent's P3 form on 9th April 2022, some seven months after the accident, recording cut wounds to the mid-skull and left side of the head, a cut wound to the left thumb, and a fracture of the left ankle joint requiring a plaster cast, and that the Respondent was still limping at the time of examination. He produced the P3 form and the hospital's treatment notes. Neither Counsel for the 1st nor the 2nd Defendant cross-examined him.
(b) The Defendants' witnesses
12. DW1, Naomi Kadesa, called by the 1st Defendant and employed by Ken Solutions Ltd, testified that motor vehicle KBR 764F, an Isuzu Pickup double cabin, belongs to Sunipu Limited, and that on 3rd September 2021 it was parked at “our yard” near Nzoia Sugar Company on account of a tyre problem and had not gone out to work that day. In cross-examination by Counsel for the Respondent, she clarified that although the vehicle belongs to Sunipu, it was “being used by Ken Solutions,” and that she held the vehicle's logbook, a copy of which she had given to her advocate.
13. DW2, Chief Inspector Nyongesa Rodgers Lwembe, the Base Commander at Bungoma Police Station, testified that the Bungoma records confirmed an accident on 3rd September 2021 involving the Respondent and KBR 764F, bearing occurrence book number 7/3/9/2021; that the abstract issued by Officer Were was genuine; and that a second, differently-particularised abstract naming a “Corporal Onduso” — an officer who has never served at the station — was not. He testified that the Bungoma entry recorded the vehicle as “registered under Nzoia Sugar Company,” and that its insurer was Trident, not Kenindia as stated on one of the abstracts. In cross-examination by Counsel for the Respondent, he confirmed he was not the investigating officer but maintained that the vehicle belonged to Nzoia Sugar Company and that the correct investigating officer was PC Were. In cross-examination by Counsel for the 2nd Defendant, he maintained that the vehicle belonged to Nzoia Sugar “because that's what it is in the abstract.”
14. DW3, Hillary Nengo Dibondo, the Appellant's transport manager, adopted his witness statement as evidence-in-chief and produced the Cane Transport Contract between the Appellant and Sunipu Limited. His statement asserted that the vehicle “belongs to the 1st Defendant as per the NTSA records as of 10th June 2022,” and his oral evidence was that the vehicle belongs to the Sunipu contract and not to Nzoia Sugar Company. In cross-examination by Counsel for the Respondent, he conceded that KBR 764F does not itself appear on the schedule of machines annexed to the contract, which lists tractors, loaders and trailers, and does not include pickups.
D. THE TRIAL COURT'S DECISION
15. The trial Court found that there was an accident involving the Respondent and the Defendants' motor vehicle, and that the Respondent had sustained the pleaded injuries. On the question of liability as between the two Defendants, the whole of the trial Court's reasoning is contained in the following passage:
16. “While the police abstract indicates the 2nd Defendant as the owner of the vehicle, copy of records indicates the 1st Defendant as the owner of the vehicle. The Defendants did not discharge the duty of determining the one who is responsible. … I thus find that the plaintiff proved his case on a balance of probabilities and I find the Defendants 100% liable for the accident.”
17. The trial Court awarded Kshs. 450,000 general damages and Kshs. 14,550 special damages, with costs and interest at Court rates from the date of judgment, and entered a joint decree against both Defendants for Kshs. 464,550.
E. GROUNDS OF APPEAL
18. The Memorandum of Appeal dated 2nd September 2024 raises five grounds, namely that the learned trial magistrate erred in law and in fact:
(a) in finding the Appellant vicariously liable for the accident in question;
(b) by failing to appreciate and analyse the documentary and oral evidence adduced by the Appellant;
(c) in not finding that the Respondent had failed to prove liability on the part of the Appellant;
(d) by awarding an inordinately high and exorbitant sum in damages; and
(e) by failing to consider evidence that the Appellant was not the insured, beneficial or registered owner of motor vehicle KBR 764F at the material time.
19. On the first issue — ownership — the Appellant's submissions contend that the Respondent sought to attribute ownership of KBR 764F to the Appellant solely on the strength of the police abstract, unsupported by any logbook, NTSA search, or other official record linking the Appellant to the vehicle; that it was expressly confirmed at trial that Sunipu Limited was the registered and beneficial owner, and that “the learned trial magistrate, in his own proceedings, acknowledged the admission of ownership by Sunipu Limited but nonetheless proceeded to hold the Appellant jointly liable — an error both factual and legal.” The submissions invoke Section 8 of the Traffic Act (Cap. 403) and submit that the Appellant “produced a certified NTSA search confirming that Sunipu Limited was the registered owner of motor vehicle KBR 764F,” such that the statutory presumption of ownership was satisfied in favour of the Interested Party and not the Appellant, and that the burden thereupon shifted to the Respondent to disprove it, which he failed to do.
20. On the evidential weight of a police abstract, the submissions rely on Thuranira Karauri v Agnes Ncheche [1997] eKLR, for the proposition that “the mere production of a police abstract, without more, is not proof of ownership” and that the information in an abstract “is hearsay unless supported by a document from the Registrar of Motor Vehicles”; on Joel Muga Opija v East African Sea Food Ltd [2013] eKLR, to similar effect; and on Nancy Ayemba Ngaira v Abdi Ali [2010] eKLR, for the proposition that “where the defendant has denied ownership of a vehicle, the burden squarely lies on the Plaintiff to produce a search certificate or logbook to confirm ownership” and that a Court “cannot rely on police abstracts as conclusive proof of ownership.” On admissions, the submissions rely on Section 20 of the Evidence Act and on Choitram v Nazari [1984] KLR 327 and Mohammed Bariz v Charles Njoroge [2018] eKLR, for the proposition that an admission, once clearly and unequivocally made, is binding on the party making it, such that the Interested Party's admission of ownership left the trial Court “no legal basis” to hold the Appellant liable.
21. On the second issue — vicarious liability — the submissions contend that, even if ownership had been established against the Appellant, the Respondent failed in any event to prove the elements of vicarious liability, there being no evidence that the driver of KBR 764F was employed by, controlled by, or acting on behalf of the Appellant. Relying on Morgan v Launchbury [1973] AC 127, for the proposition that an owner is liable only where the driver was using the vehicle “at the owner's request or with his permission, express or implied, and was doing so in the course of the owner's business or for the owner's purposes”; on Keen v Tarmal Wire Products Ltd [1979] eKLR, to similar effect; and on Jane Wairimu Turanta v Githae John Mugo & Another [2014] eKLR, for the proposition that “the mere fact of ownership does not automatically translate into liability” — the submissions argue that the driver was never identified as an employee or agent of the Appellant, that no employment records, work tickets, delivery schedules or transport department documents were produced, and that no evidence was adduced that the Appellant controlled, directed, or derived any benefit from the driver's activities. The submissions further rely on Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991] 2 KAR 258, for the proposition that “there is, in our law, no liability without fault,” and on Anyanzwa v Gasperis [1981] KLR 10, for the proposition that ownership alone does not raise a presumption that the driver was the owner's servant acting on the owner's business, and conclude that the Respondent failed to meet the evidential burden under Section 107 of the Evidence Act.
22. The Appellant's submissions conclude by praying that the appeal be allowed in its entirety, the judgment and decree of the trial Court set aside, the finding on liability substituted with an order dismissing the suit against the Appellant with costs, and the costs of the appeal and of the subordinate Court proceedings awarded to the Appellant. Ground (d) on quantum is not pressed with any particulars or argument, and is addressed together with the Respondent's submissions on quantum below.
F. THE RESPONDENT'S SUBMISSIONS
23. The Respondent's submissions address two issues: whether the trial Court's finding on liability was erroneous, and whether quantum was correctly awarded and, if not, to what extent it should be varied.
24. On liability, the submissions contend that the trial Court properly evaluated the evidence and applied the correct legal principles; that ownership under Section 8 of the Traffic Act is only a rebuttable presumption, and may be established through registered documents, or through beneficial or possessory control, or through a police abstract not rebutted by credible documentary evidence; that PW2 and DW2 testified that their investigations revealed the Appellant to be the owner of KBR 764F, constituting independent and objective proof of ownership and control; that the Interested Party gave contradictory evidence regarding a claimed sale of the vehicle without producing any supporting documentation. It was further submitted that the Cane Transport Contract was irrelevant as it did not concern the accident vehicle; and that, once ownership or control of a vehicle is established, the law presumes it is being used with the owner's authority and for the owner's benefit unless credible evidence is produced to the contrary — relying on Nancy Ayemba Ngaira v Abdi Ali [2010] eKLR and Kenya Bus Services Ltd v Dina Kawira Humphrey [2003] KLR 665 (following Karisa v Solanki [1969] EA 318).
25. On quantum, the submissions urge that the award be enhanced, submitting that Kshs. 1,000,000 is a modest and appropriate figure for the Respondent's injuries, relying on Finlays Horticulture Kenya Limited v Grace Wacugu Chiira [2020] eKLR, together with special damages of Kshs. 14,550. The submissions conclude by urging that the appeal be found to be wholly without merit and dismissed with costs.
G. VERIFICATION OF AUTHORITIES CITED
26. Having identified a conflict between the parties' citations of Nancy Ayemba Ngaira v Abdi Ali [2010] eKLR, the Court considered it necessary to verify every authority relied upon in the Appellant's submissions, not only that one. The results are set out below.
27. Four authorities were verified without difficulty and are accurately cited and substantively accurately stated: Thuranira Karauri v Agnes Ncheche [1997] eKLR; Morgan v Launchbury [1973] AC 127; Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991] 2 KAR 258; and Anyanzwa v Gasperis [1981] KLR 10. The Court relies on these without reservation.
28. “Jane Wairimu Turanta v Githae John Mugo & Another [2014] eKLR,” as cited, does not correspond to any reported decision under that name. The Court has identified what it considers to be the intended authority: Jane Wairimu Turanta v Githae John Vickery & 2 others [2013] eKLR (High Court at Nairobi, Civil Suit No. 483 of 2012), in which a bank named as a joint registered owner of a vehicle, purely as chargeholder and financier, was held not vicariously liable for an accident because it had no control over the vehicle's daily use and the driver was not its agent — a proposition materially indistinguishable from that for which the Appellant cites it. The Court treats the authority, correctly identified, as accurately stating the law, while recording that the citation as given contains two errors: the name of the second defendant and the year of decision.
29. Choitram v Nazari [1984] KLR 327 is a genuine and frequently-cited Court of Appeal authority on judgment on admission. The passage attributed to it in the Appellant's submissions — “An admission is the best evidence that an opposing party can rely upon, and though not conclusive, it is decisive of the matter, unless successfully withdrawn or shown to be erroneous” — does not, however, correspond to the passage consistently recorded from that judgment in the authorities the Court has reviewed, which instead attribute to Madan JA the holding that admissions “have to be plain and obvious, as plain as a pikestaff and clearly readable.” The Court has been unable to verify the quoted passage and does not rely on it, though it does not doubt that Choitram v Nazari remains good authority for the general proposition that a clear and unequivocal admission binds the party making it.
30. Nancy Ayemba Ngaira v Abdi Ali [2010] eKLR was cited by name in both the Appellant's and the Respondent's submissions, for propositions that cannot both be correct. The Appellant's submissions quote it as authority that a police abstract is not proof of ownership and that the burden lies squarely on the party asserting ownership to produce a search certificate or logbook. The Respondent's submissions quote a substantially longer passage from the same case, addressing a matatu-accident appeal in which a magistrate's Court had limited ownership, and therefore liability, to the defendant named on the certificate of registration, and in which the High Court (Ojwang J., as he then was) held that the certificate is not final proof of sole ownership, that alternative forms of ownership — actual, beneficial and possessory — may exist and be proved by other evidence, and that on the facts of that case the evidence, including a police abstract, showed on a balance of probabilities that the defendant not named on the certificate was also an owner, such that liability ought to have attached to both defendants rather than one.
31. Having verified the citation, the Court finds that the passage set out in the Respondent's submissions accurately reflects the reported decision in Nancy Ayemba Ngaira v Abdi Ali, Civil Appeal No. 107 of 2008, High Court at Mombasa [2010] eKLR. The proposition attributed to the case in the Appellant's submissions — that a police abstract cannot be relied upon and that a search certificate or logbook must be produced — does not appear in that judgment, which if anything holds the converse: that registration is not conclusive and that other credible evidence, including a police abstract, may establish ownership additional to or independent of the person named on the certificate.
32. Joel Muga Opija v East African Sea Food Ltd [2013] eKLR, cited in the Appellant's submissions for the proposition that it is "now trite law" that a police abstract, by itself, is not proof of ownership, does not support that proposition. The Court of Appeal in that case in fact reinstated a trial court finding that an unrebutted, unchallenged police abstract was sufficient proof of ownership, reversing a superior court decision that had applied Thuranira Karauri too rigidly, and held that "when the abstract is not challenged and is produced in Court without any objection, its content cannot later be denied." The proposition attributed to the case is, if anything, the converse of its actual holding. Having verified this, the Court does not rely on Joel Muga Opija in its own analysis of ownership below, which instead rests on Thuranira Karauri v Agnes Ncheche and Nancy Ayemba Ngaira v Abdi Alilater be denied.” The proposition attributed to the case is, if anything, the converse of its actual holding.
33. “Keen v Tarmal Wire Products Ltd [1979] eKLR,” cited in the Appellant's submissions for the proposition that an employer is liable for a servant's acts only where the servant was, at the material time, engaged on the employer's business and acting within the scope of employment, does not correspond to any reported decision the Court has been able to locate under that name. The Court observes, without more, that a citation in the form “[1979] eKLR” is itself unusual, since the electronic case-law database from which the “eKLR” neutral citation derives did not exist, and did not begin assigning such citations to judgments, until some decades after 1979.
34. “Mohammed Bariz v Charles Njoroge [2018] eKLR,” cited in the Appellant's submissions for the proposition that an admission, once clearly and unequivocally made, is binding on the party making it and may be relied upon by the opposing party as proof of the admitted fact, likewise does not correspond to any reported decision the Court has been able to locate.
35. Of the nine authorities relied upon in the Appellant's submissions, four — Nancy Ayemba Ngaira v Abdi Ali, Joel Muga Opija v East African Sea Food Ltd, Keen v Tarmal Wire Products Ltd, and Mohammed Bariz v Charles Njoroge — either do not exist as cited or do not support the proposition attributed to them, and a fifth, Jane Wairimu Turanta v Githae John Mugo & Another, contains citation errors though the principle for which it is cited is, once the authority is correctly identified, genuinely part of Kenyan law. The Court records these findings not to impugn Counsel, but because reliance on unverified citations, whatever their origin, risks misleading the Court and opposing Counsel alike, and the pattern here is sufficiently marked to warrant record. The Court's own findings on ownership and vicarious liability, rest only on authorities it has independently verified.
H. THE COURT'S APPROACH TO THE SUBMISSIONS OF BOTH PARTIES
36. The Court has tested the Respondent's submissions against the record with the same rigour applied to the Appellant's. Two points call for comment. First, the assertion that “both PW2 and DW2 testified that their investigations revealed the owner…to be the Appellant” overstates PW2's evidence: as recorded above, PW2 testified that she did not personally investigate the accident and issued the abstract based on the Bukembe occurrence book; it is DW2 alone who gave first-hand testimony connecting the Bungoma police entry to the Appellant's ownership. Second, the assertion that the Interested Party's witness claimed the vehicle “had been sold to Cane Solutions Limited” and later “conceded that the vehicle had never been transferred” does not correspond to anything in the record: no witness testified to any sale of the vehicle to any entity, and DW1 testified only that the vehicle was owned by Sunipu Limited and operated by Ken Solutions — a different proposition, and one that does not involve or concede a sale. The Court disregards both assertions and relies on the record as it in fact stands.
37. The Interested Party, Sunipu Limited, has at no stage — whether by cross-appeal, response, or submissions — taken any part in this appeal, and remains in default. That default does not itself determine any issue; it simply means the Interested Party's interests, to the extent engaged by this judgment, are addressed on the existing trial record alone.
38. For completeness, two assertions in the Appellant's own submissions likewise do not accurately reflect the record: the claim that “the vehicle itself was produced and identified in Court as belonging to Sunipu Limited, having been under their possession and control at the time of the hearing” no witness so testified, and the claim that “the Appellant produced a certified NTSA search confirming that Sunipu Limited was the registered owner” (the search was in fact the Respondent's own document). Both are disregarded for the same reasons given and, in relation to the authorities relied upon in support of the Appellant's submissions generally.
I. DUTY OF THE FIRST APPELLATE COURT
39. This being a first appeal, this Court is under a duty to re-evaluate and reconsider the evidence on record afresh and to draw its own conclusions of fact and law, bearing in mind that, unlike the trial Court, it neither saw nor heard the witnesses testify, and must make due allowance for that disadvantage (see Selle v Associated Motor Boat Co Ltd [1968] EA 123). The Court will interfere with findings of fact only where the trial Court is shown to have misapprehended the evidence, acted on wrong principles, or reached a finding plainly against the weight of the evidence.
J. ANALYSIS
Issue (i): Ownership of motor vehicle KBR 764F at the material time
40. Section 8 of the Traffic Act (Cap. 403) provides that the person in whose name a vehicle is registered is, unless the contrary is proved, deemed to be its owner. Where a defendant denies ownership, a police abstract, standing alone, does not suffice to prove it: the party asserting ownership must go further and produce a certificate of official search from the Registrar of Motor Vehicles, or other credible evidence to that effect relying on the decision in Thuranira Karauri v Agnes Ncheche [1997] eKLR. That principle is not, however, to be read as confining proof of ownership to a certificate of registration alone: registration is not final or conclusive proof that its named holder is the sole owner, and alternative forms of ownership — actual, beneficial and possessory — may exist concurrently and may be established by other credible evidence, assessed on the totality of the record. I am persuaded by the decision in Nancy Ayemba Ngaira v Abdi Ali [2010] eKLR.
41. The certificate of official search from the National Transport and Safety Authority, produced by the Respondent's own advocate and put to the Respondent in cross-examination, records Sunipu Limited as the registered owner of KBR 764F, with Bank of Baroda (Kenya) Ltd noted as an interested chargeholder, a position corroborated by DW1 and by DW3's witness statement. That evidence is, however, expressly dated — the search itself, and DW3's statement adopting it, speak only to the position “as at” or “as of 10th June 2022,” some nine months after the accident of 3rd September 2021. It does not, without more, establish who held registration, actual, beneficial or possessory ownership on the earlier date of the accident.
42. Against that, the Bungoma police entry, generated in the aftermath of the accident, was confirmed at trial not merely by production of the abstract, but by the independent oral testimony of DW2, the Base Commander, who testified from the station's own entry — as distinct from a second, differently-particularised abstract of doubtful provenance — that the vehicle was registered to Nzoia Sugar Company. That evidence was not shaken in cross-examination on this point, notwithstanding the acknowledged clerical errors on the face of the abstract as to the vehicle's make, which PW2, its issuing officer, frankly conceded. I do not, for the reasons given above, treat PW2's own evidence as independently establishing ownership; it is DW2's corroboration that carries that weight.
43. Weighing this evidence as a whole, and applying the correct principle in Nancy Ayemba Ngaira — that registration is not conclusive and that other credible evidence may establish an ownership interest independent of, or additional to, the person named on a later certificate — I find that the Respondent has shown, on a balance of probabilities, that the Appellant held an actual or apparent ownership interest in, or connection to, motor vehicle KBR 764F as at 3rd September 2021, notwithstanding the later NTSA record naming Sunipu Limited. Ground (e) of the appeal is accordingly not made out.
Issue (ii): Vicarious liability
44. Liability in negligence for the driving of a motor vehicle attaches, in the first instance, to the driver. Where it is proved that a vehicle has caused damage through negligent driving, a presumption arises, in the absence of evidence to the contrary, that it was driven by a person for whose negligence the owner is responsible. See the decision of Karisa v Solanki [1969] EA 318 and applied in the Court of Appeal decision in Kenya Bus Services Ltd v Dina Kawira Humphrey [2003] KLR 665. That presumption is not, however, irrebuttable: it is made stronger or weaker by the surrounding circumstances, and the Court of Appeal has held that vicarious liability properly follows control of the vehicle rather than bare owne
[...truncated]
1. This is a first appeal from the judgment of the Chief Magistrate's Court at Bungoma (Hon. Tom Mark Orlando, Principal Magistrate) delivered on 7th August 2024 in Bungoma CMCC No. 31 of 2023 (originally instituted as Civil Suit No. 31 of 2022), in which the trial Court found the 1st Defendant, Sunipu Limited, and the 2nd Defendant, Nzoia Sugar Company Limited, jointly and 100% liable to the Plaintiff, Isaac Barasa Makokha, for injuries sustained in a road traffic accident, and entered judgment for Kshs. 464,550 (comprising Kshs. 450,000 general damages and Kshs. 14,550 special damages), together with costs and interest.
2. The 2nd Defendant, Nzoia Sugar Company Limited, being aggrieved, filed a Notice of Appeal dated 16th October 2024 and a Memorandum of Appeal dated 2nd September 2024, and appears before this Court as Appellant. Isaac Barasa Makokha, the original Plaintiff, is the Respondent. Sunipu Limited, the 1st Defendant at trial, has not appealed and is joined to this appeal as Interested Party only.
3. The Appellant filed written submissions dated 7th October 2025 through the firm of Walubengo, Waningilo & Co. Advocates, in support of its Appeal. The Respondent filed written submissions dated 11th December 2025 through the firm of M/S Namatsi & Co. Advocates, opposing the appeal. The Interested Party, Sunipu Limited, has filed no response, submissions, or other document opposing or supporting the appeal at any stage.
B. BRIEF FACTS
4. The Respondent's case at trial, as pleaded and testified to as PW1, was that on 3rd September 2021 at about 6.30 p.m., while riding a bicycle along the Nzoia–Bukembe road near the railway crossing, he was struck from behind by motor vehicle registration number KBR 764F, negligently driven, and sustained a mild head injury, cut wounds to the forehead, parietal scalp and left thumb, a blunt chest injury, and a fracture of the left ankle.
5. The Respondent sued Sunipu Limited as 1st Defendant and Nzoia Sugar Company Limited as 2nd Defendant, without identifying the driver, on the footing that one or other of the two corporate defendants owned and/or was responsible for the vehicle.
6. Sunipu Limited's defence, in substance, was that the accident never occurred and that the police abstract relied upon by the Respondent was not genuine. Nzoia Sugar Company Limited's defence was that it did not own, insure, or control the vehicle; that the registered owner was Sunipu Limited; and that, in any event, Sunipu Limited was an independent contractor engaged to transport cane under a written agreement making Sunipu Limited answerable for loss, injury or damage caused by its own vehicles, workers or agents to third parties.
C. EVIDENCE ADDUCED AT TRIAL
7. The evidence at trial, material to the issues arising on this appeal, may be summarised as follows.
(a) The Respondent's witnesses
8. PW1, Isaac Barasa Makokha (the Respondent), adopted his witness statement as evidence-in-chief and produced his identity document, authority to act, demand notice, medical report, P3 form, treatment notes, motor vehicle search, police abstract and payment receipts. In cross-examination by Counsel for the 1st Defendant, he maintained that he was cycling from Nzoia towards Bukembe when the vehicle struck him from behind, that it stopped briefly before the driver sped off, and that he did not know the driver and had accordingly sued “the company.” He confirmed that the motor vehicle search he had obtained showed the vehicle to be an Isuzu Pickup — not the Toyota he had believed — registered to Sunipu Limited, and stated, “I know the owner of the vehicle is Sunipu Limited.” He said the accident was reported the same day at Bukembe police station and that the abstract was issued some seven months later. In cross-examination by Counsel for the 2nd Defendant, he stated that the vehicle was travelling at a moderate, not high, speed, since it stopped on impact.
9. PW2, Jackline Were, a police officer attached to the traffic department at Bungoma police station, testified that Bukembe is a police post under Bungoma station; that she did not personally investigate the accident but issued the police abstract (produced as Exhibit 10) after perusing the Bukembe occurrence book; and that abstracts, although accidents may be booked at Bukembe, are issued only at Bungoma station. She named the officer who originally booked the accident as PC Mwangi. In cross-examination, she was unable to produce the investigating officer's own statement, confirmed that “Onduso” held the rank of PC and not the rank appearing elsewhere in the record, and conceded that the abstract's description of the vehicle as a “Toyota Pick Up” was a mistake, the vehicle in fact being an Isuzu Pick Up. She had no accident sketch and did not have the occurrence book or extract with her in Court.
10. PW3, Dr Joseph Sokobe, the doctor who examined the Respondent, produced and confirmed his medical report of 24th November 2022. In cross-examination by Counsel for the 1st Defendant, he stated that he had examined the Respondent almost a year after the accident and found that he had by then fully recovered. He was recalled at the close of the Respondent's case, at the request of Counsel for the 2nd Defendant, and testified: “The owner of the motor vehicle is Sunipu Ltd care of Nzoia Sugar Company. I was told by the administration in the company that the vehicle belonged to Nzoia.”
11. PW4, Elias Adoka, a clinical officer at Bungoma County Referral Hospital, testified that he signed the Respondent's P3 form on 9th April 2022, some seven months after the accident, recording cut wounds to the mid-skull and left side of the head, a cut wound to the left thumb, and a fracture of the left ankle joint requiring a plaster cast, and that the Respondent was still limping at the time of examination. He produced the P3 form and the hospital's treatment notes. Neither Counsel for the 1st nor the 2nd Defendant cross-examined him.
(b) The Defendants' witnesses
12. DW1, Naomi Kadesa, called by the 1st Defendant and employed by Ken Solutions Ltd, testified that motor vehicle KBR 764F, an Isuzu Pickup double cabin, belongs to Sunipu Limited, and that on 3rd September 2021 it was parked at “our yard” near Nzoia Sugar Company on account of a tyre problem and had not gone out to work that day. In cross-examination by Counsel for the Respondent, she clarified that although the vehicle belongs to Sunipu, it was “being used by Ken Solutions,” and that she held the vehicle's logbook, a copy of which she had given to her advocate.
13. DW2, Chief Inspector Nyongesa Rodgers Lwembe, the Base Commander at Bungoma Police Station, testified that the Bungoma records confirmed an accident on 3rd September 2021 involving the Respondent and KBR 764F, bearing occurrence book number 7/3/9/2021; that the abstract issued by Officer Were was genuine; and that a second, differently-particularised abstract naming a “Corporal Onduso” — an officer who has never served at the station — was not. He testified that the Bungoma entry recorded the vehicle as “registered under Nzoia Sugar Company,” and that its insurer was Trident, not Kenindia as stated on one of the abstracts. In cross-examination by Counsel for the Respondent, he confirmed he was not the investigating officer but maintained that the vehicle belonged to Nzoia Sugar Company and that the correct investigating officer was PC Were. In cross-examination by Counsel for the 2nd Defendant, he maintained that the vehicle belonged to Nzoia Sugar “because that's what it is in the abstract.”
14. DW3, Hillary Nengo Dibondo, the Appellant's transport manager, adopted his witness statement as evidence-in-chief and produced the Cane Transport Contract between the Appellant and Sunipu Limited. His statement asserted that the vehicle “belongs to the 1st Defendant as per the NTSA records as of 10th June 2022,” and his oral evidence was that the vehicle belongs to the Sunipu contract and not to Nzoia Sugar Company. In cross-examination by Counsel for the Respondent, he conceded that KBR 764F does not itself appear on the schedule of machines annexed to the contract, which lists tractors, loaders and trailers, and does not include pickups.
D. THE TRIAL COURT'S DECISION
15. The trial Court found that there was an accident involving the Respondent and the Defendants' motor vehicle, and that the Respondent had sustained the pleaded injuries. On the question of liability as between the two Defendants, the whole of the trial Court's reasoning is contained in the following passage:
16. “While the police abstract indicates the 2nd Defendant as the owner of the vehicle, copy of records indicates the 1st Defendant as the owner of the vehicle. The Defendants did not discharge the duty of determining the one who is responsible. … I thus find that the plaintiff proved his case on a balance of probabilities and I find the Defendants 100% liable for the accident.”
17. The trial Court awarded Kshs. 450,000 general damages and Kshs. 14,550 special damages, with costs and interest at Court rates from the date of judgment, and entered a joint decree against both Defendants for Kshs. 464,550.
E. GROUNDS OF APPEAL
18. The Memorandum of Appeal dated 2nd September 2024 raises five grounds, namely that the learned trial magistrate erred in law and in fact:
(a) in finding the Appellant vicariously liable for the accident in question;
(b) by failing to appreciate and analyse the documentary and oral evidence adduced by the Appellant;
(c) in not finding that the Respondent had failed to prove liability on the part of the Appellant;
(d) by awarding an inordinately high and exorbitant sum in damages; and
(e) by failing to consider evidence that the Appellant was not the insured, beneficial or registered owner of motor vehicle KBR 764F at the material time.
19. On the first issue — ownership — the Appellant's submissions contend that the Respondent sought to attribute ownership of KBR 764F to the Appellant solely on the strength of the police abstract, unsupported by any logbook, NTSA search, or other official record linking the Appellant to the vehicle; that it was expressly confirmed at trial that Sunipu Limited was the registered and beneficial owner, and that “the learned trial magistrate, in his own proceedings, acknowledged the admission of ownership by Sunipu Limited but nonetheless proceeded to hold the Appellant jointly liable — an error both factual and legal.” The submissions invoke Section 8 of the Traffic Act (Cap. 403) and submit that the Appellant “produced a certified NTSA search confirming that Sunipu Limited was the registered owner of motor vehicle KBR 764F,” such that the statutory presumption of ownership was satisfied in favour of the Interested Party and not the Appellant, and that the burden thereupon shifted to the Respondent to disprove it, which he failed to do.
20. On the evidential weight of a police abstract, the submissions rely on Thuranira Karauri v Agnes Ncheche [1997] eKLR, for the proposition that “the mere production of a police abstract, without more, is not proof of ownership” and that the information in an abstract “is hearsay unless supported by a document from the Registrar of Motor Vehicles”; on Joel Muga Opija v East African Sea Food Ltd [2013] eKLR, to similar effect; and on Nancy Ayemba Ngaira v Abdi Ali [2010] eKLR, for the proposition that “where the defendant has denied ownership of a vehicle, the burden squarely lies on the Plaintiff to produce a search certificate or logbook to confirm ownership” and that a Court “cannot rely on police abstracts as conclusive proof of ownership.” On admissions, the submissions rely on Section 20 of the Evidence Act and on Choitram v Nazari [1984] KLR 327 and Mohammed Bariz v Charles Njoroge [2018] eKLR, for the proposition that an admission, once clearly and unequivocally made, is binding on the party making it, such that the Interested Party's admission of ownership left the trial Court “no legal basis” to hold the Appellant liable.
21. On the second issue — vicarious liability — the submissions contend that, even if ownership had been established against the Appellant, the Respondent failed in any event to prove the elements of vicarious liability, there being no evidence that the driver of KBR 764F was employed by, controlled by, or acting on behalf of the Appellant. Relying on Morgan v Launchbury [1973] AC 127, for the proposition that an owner is liable only where the driver was using the vehicle “at the owner's request or with his permission, express or implied, and was doing so in the course of the owner's business or for the owner's purposes”; on Keen v Tarmal Wire Products Ltd [1979] eKLR, to similar effect; and on Jane Wairimu Turanta v Githae John Mugo & Another [2014] eKLR, for the proposition that “the mere fact of ownership does not automatically translate into liability” — the submissions argue that the driver was never identified as an employee or agent of the Appellant, that no employment records, work tickets, delivery schedules or transport department documents were produced, and that no evidence was adduced that the Appellant controlled, directed, or derived any benefit from the driver's activities. The submissions further rely on Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991] 2 KAR 258, for the proposition that “there is, in our law, no liability without fault,” and on Anyanzwa v Gasperis [1981] KLR 10, for the proposition that ownership alone does not raise a presumption that the driver was the owner's servant acting on the owner's business, and conclude that the Respondent failed to meet the evidential burden under Section 107 of the Evidence Act.
22. The Appellant's submissions conclude by praying that the appeal be allowed in its entirety, the judgment and decree of the trial Court set aside, the finding on liability substituted with an order dismissing the suit against the Appellant with costs, and the costs of the appeal and of the subordinate Court proceedings awarded to the Appellant. Ground (d) on quantum is not pressed with any particulars or argument, and is addressed together with the Respondent's submissions on quantum below.
F. THE RESPONDENT'S SUBMISSIONS
23. The Respondent's submissions address two issues: whether the trial Court's finding on liability was erroneous, and whether quantum was correctly awarded and, if not, to what extent it should be varied.
24. On liability, the submissions contend that the trial Court properly evaluated the evidence and applied the correct legal principles; that ownership under Section 8 of the Traffic Act is only a rebuttable presumption, and may be established through registered documents, or through beneficial or possessory control, or through a police abstract not rebutted by credible documentary evidence; that PW2 and DW2 testified that their investigations revealed the Appellant to be the owner of KBR 764F, constituting independent and objective proof of ownership and control; that the Interested Party gave contradictory evidence regarding a claimed sale of the vehicle without producing any supporting documentation. It was further submitted that the Cane Transport Contract was irrelevant as it did not concern the accident vehicle; and that, once ownership or control of a vehicle is established, the law presumes it is being used with the owner's authority and for the owner's benefit unless credible evidence is produced to the contrary — relying on Nancy Ayemba Ngaira v Abdi Ali [2010] eKLR and Kenya Bus Services Ltd v Dina Kawira Humphrey [2003] KLR 665 (following Karisa v Solanki [1969] EA 318).
25. On quantum, the submissions urge that the award be enhanced, submitting that Kshs. 1,000,000 is a modest and appropriate figure for the Respondent's injuries, relying on Finlays Horticulture Kenya Limited v Grace Wacugu Chiira [2020] eKLR, together with special damages of Kshs. 14,550. The submissions conclude by urging that the appeal be found to be wholly without merit and dismissed with costs.
G. VERIFICATION OF AUTHORITIES CITED
26. Having identified a conflict between the parties' citations of Nancy Ayemba Ngaira v Abdi Ali [2010] eKLR, the Court considered it necessary to verify every authority relied upon in the Appellant's submissions, not only that one. The results are set out below.
27. Four authorities were verified without difficulty and are accurately cited and substantively accurately stated: Thuranira Karauri v Agnes Ncheche [1997] eKLR; Morgan v Launchbury [1973] AC 127; Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991] 2 KAR 258; and Anyanzwa v Gasperis [1981] KLR 10. The Court relies on these without reservation.
28. “Jane Wairimu Turanta v Githae John Mugo & Another [2014] eKLR,” as cited, does not correspond to any reported decision under that name. The Court has identified what it considers to be the intended authority: Jane Wairimu Turanta v Githae John Vickery & 2 others [2013] eKLR (High Court at Nairobi, Civil Suit No. 483 of 2012), in which a bank named as a joint registered owner of a vehicle, purely as chargeholder and financier, was held not vicariously liable for an accident because it had no control over the vehicle's daily use and the driver was not its agent — a proposition materially indistinguishable from that for which the Appellant cites it. The Court treats the authority, correctly identified, as accurately stating the law, while recording that the citation as given contains two errors: the name of the second defendant and the year of decision.
29. Choitram v Nazari [1984] KLR 327 is a genuine and frequently-cited Court of Appeal authority on judgment on admission. The passage attributed to it in the Appellant's submissions — “An admission is the best evidence that an opposing party can rely upon, and though not conclusive, it is decisive of the matter, unless successfully withdrawn or shown to be erroneous” — does not, however, correspond to the passage consistently recorded from that judgment in the authorities the Court has reviewed, which instead attribute to Madan JA the holding that admissions “have to be plain and obvious, as plain as a pikestaff and clearly readable.” The Court has been unable to verify the quoted passage and does not rely on it, though it does not doubt that Choitram v Nazari remains good authority for the general proposition that a clear and unequivocal admission binds the party making it.
30. Nancy Ayemba Ngaira v Abdi Ali [2010] eKLR was cited by name in both the Appellant's and the Respondent's submissions, for propositions that cannot both be correct. The Appellant's submissions quote it as authority that a police abstract is not proof of ownership and that the burden lies squarely on the party asserting ownership to produce a search certificate or logbook. The Respondent's submissions quote a substantially longer passage from the same case, addressing a matatu-accident appeal in which a magistrate's Court had limited ownership, and therefore liability, to the defendant named on the certificate of registration, and in which the High Court (Ojwang J., as he then was) held that the certificate is not final proof of sole ownership, that alternative forms of ownership — actual, beneficial and possessory — may exist and be proved by other evidence, and that on the facts of that case the evidence, including a police abstract, showed on a balance of probabilities that the defendant not named on the certificate was also an owner, such that liability ought to have attached to both defendants rather than one.
31. Having verified the citation, the Court finds that the passage set out in the Respondent's submissions accurately reflects the reported decision in Nancy Ayemba Ngaira v Abdi Ali, Civil Appeal No. 107 of 2008, High Court at Mombasa [2010] eKLR. The proposition attributed to the case in the Appellant's submissions — that a police abstract cannot be relied upon and that a search certificate or logbook must be produced — does not appear in that judgment, which if anything holds the converse: that registration is not conclusive and that other credible evidence, including a police abstract, may establish ownership additional to or independent of the person named on the certificate.
32. Joel Muga Opija v East African Sea Food Ltd [2013] eKLR, cited in the Appellant's submissions for the proposition that it is "now trite law" that a police abstract, by itself, is not proof of ownership, does not support that proposition. The Court of Appeal in that case in fact reinstated a trial court finding that an unrebutted, unchallenged police abstract was sufficient proof of ownership, reversing a superior court decision that had applied Thuranira Karauri too rigidly, and held that "when the abstract is not challenged and is produced in Court without any objection, its content cannot later be denied." The proposition attributed to the case is, if anything, the converse of its actual holding. Having verified this, the Court does not rely on Joel Muga Opija in its own analysis of ownership below, which instead rests on Thuranira Karauri v Agnes Ncheche and Nancy Ayemba Ngaira v Abdi Alilater be denied.” The proposition attributed to the case is, if anything, the converse of its actual holding.
33. “Keen v Tarmal Wire Products Ltd [1979] eKLR,” cited in the Appellant's submissions for the proposition that an employer is liable for a servant's acts only where the servant was, at the material time, engaged on the employer's business and acting within the scope of employment, does not correspond to any reported decision the Court has been able to locate under that name. The Court observes, without more, that a citation in the form “[1979] eKLR” is itself unusual, since the electronic case-law database from which the “eKLR” neutral citation derives did not exist, and did not begin assigning such citations to judgments, until some decades after 1979.
34. “Mohammed Bariz v Charles Njoroge [2018] eKLR,” cited in the Appellant's submissions for the proposition that an admission, once clearly and unequivocally made, is binding on the party making it and may be relied upon by the opposing party as proof of the admitted fact, likewise does not correspond to any reported decision the Court has been able to locate.
35. Of the nine authorities relied upon in the Appellant's submissions, four — Nancy Ayemba Ngaira v Abdi Ali, Joel Muga Opija v East African Sea Food Ltd, Keen v Tarmal Wire Products Ltd, and Mohammed Bariz v Charles Njoroge — either do not exist as cited or do not support the proposition attributed to them, and a fifth, Jane Wairimu Turanta v Githae John Mugo & Another, contains citation errors though the principle for which it is cited is, once the authority is correctly identified, genuinely part of Kenyan law. The Court records these findings not to impugn Counsel, but because reliance on unverified citations, whatever their origin, risks misleading the Court and opposing Counsel alike, and the pattern here is sufficiently marked to warrant record. The Court's own findings on ownership and vicarious liability, rest only on authorities it has independently verified.
H. THE COURT'S APPROACH TO THE SUBMISSIONS OF BOTH PARTIES
36. The Court has tested the Respondent's submissions against the record with the same rigour applied to the Appellant's. Two points call for comment. First, the assertion that “both PW2 and DW2 testified that their investigations revealed the owner…to be the Appellant” overstates PW2's evidence: as recorded above, PW2 testified that she did not personally investigate the accident and issued the abstract based on the Bukembe occurrence book; it is DW2 alone who gave first-hand testimony connecting the Bungoma police entry to the Appellant's ownership. Second, the assertion that the Interested Party's witness claimed the vehicle “had been sold to Cane Solutions Limited” and later “conceded that the vehicle had never been transferred” does not correspond to anything in the record: no witness testified to any sale of the vehicle to any entity, and DW1 testified only that the vehicle was owned by Sunipu Limited and operated by Ken Solutions — a different proposition, and one that does not involve or concede a sale. The Court disregards both assertions and relies on the record as it in fact stands.
37. The Interested Party, Sunipu Limited, has at no stage — whether by cross-appeal, response, or submissions — taken any part in this appeal, and remains in default. That default does not itself determine any issue; it simply means the Interested Party's interests, to the extent engaged by this judgment, are addressed on the existing trial record alone.
38. For completeness, two assertions in the Appellant's own submissions likewise do not accurately reflect the record: the claim that “the vehicle itself was produced and identified in Court as belonging to Sunipu Limited, having been under their possession and control at the time of the hearing” no witness so testified, and the claim that “the Appellant produced a certified NTSA search confirming that Sunipu Limited was the registered owner” (the search was in fact the Respondent's own document). Both are disregarded for the same reasons given and, in relation to the authorities relied upon in support of the Appellant's submissions generally.
I. DUTY OF THE FIRST APPELLATE COURT
39. This being a first appeal, this Court is under a duty to re-evaluate and reconsider the evidence on record afresh and to draw its own conclusions of fact and law, bearing in mind that, unlike the trial Court, it neither saw nor heard the witnesses testify, and must make due allowance for that disadvantage (see Selle v Associated Motor Boat Co Ltd [1968] EA 123). The Court will interfere with findings of fact only where the trial Court is shown to have misapprehended the evidence, acted on wrong principles, or reached a finding plainly against the weight of the evidence.
J. ANALYSIS
Issue (i): Ownership of motor vehicle KBR 764F at the material time
40. Section 8 of the Traffic Act (Cap. 403) provides that the person in whose name a vehicle is registered is, unless the contrary is proved, deemed to be its owner. Where a defendant denies ownership, a police abstract, standing alone, does not suffice to prove it: the party asserting ownership must go further and produce a certificate of official search from the Registrar of Motor Vehicles, or other credible evidence to that effect relying on the decision in Thuranira Karauri v Agnes Ncheche [1997] eKLR. That principle is not, however, to be read as confining proof of ownership to a certificate of registration alone: registration is not final or conclusive proof that its named holder is the sole owner, and alternative forms of ownership — actual, beneficial and possessory — may exist concurrently and may be established by other credible evidence, assessed on the totality of the record. I am persuaded by the decision in Nancy Ayemba Ngaira v Abdi Ali [2010] eKLR.
41. The certificate of official search from the National Transport and Safety Authority, produced by the Respondent's own advocate and put to the Respondent in cross-examination, records Sunipu Limited as the registered owner of KBR 764F, with Bank of Baroda (Kenya) Ltd noted as an interested chargeholder, a position corroborated by DW1 and by DW3's witness statement. That evidence is, however, expressly dated — the search itself, and DW3's statement adopting it, speak only to the position “as at” or “as of 10th June 2022,” some nine months after the accident of 3rd September 2021. It does not, without more, establish who held registration, actual, beneficial or possessory ownership on the earlier date of the accident.
42. Against that, the Bungoma police entry, generated in the aftermath of the accident, was confirmed at trial not merely by production of the abstract, but by the independent oral testimony of DW2, the Base Commander, who testified from the station's own entry — as distinct from a second, differently-particularised abstract of doubtful provenance — that the vehicle was registered to Nzoia Sugar Company. That evidence was not shaken in cross-examination on this point, notwithstanding the acknowledged clerical errors on the face of the abstract as to the vehicle's make, which PW2, its issuing officer, frankly conceded. I do not, for the reasons given above, treat PW2's own evidence as independently establishing ownership; it is DW2's corroboration that carries that weight.
43. Weighing this evidence as a whole, and applying the correct principle in Nancy Ayemba Ngaira — that registration is not conclusive and that other credible evidence may establish an ownership interest independent of, or additional to, the person named on a later certificate — I find that the Respondent has shown, on a balance of probabilities, that the Appellant held an actual or apparent ownership interest in, or connection to, motor vehicle KBR 764F as at 3rd September 2021, notwithstanding the later NTSA record naming Sunipu Limited. Ground (e) of the appeal is accordingly not made out.
Issue (ii): Vicarious liability
44. Liability in negligence for the driving of a motor vehicle attaches, in the first instance, to the driver. Where it is proved that a vehicle has caused damage through negligent driving, a presumption arises, in the absence of evidence to the contrary, that it was driven by a person for whose negligence the owner is responsible. See the decision of Karisa v Solanki [1969] EA 318 and applied in the Court of Appeal decision in Kenya Bus Services Ltd v Dina Kawira Humphrey [2003] KLR 665. That presumption is not, however, irrebuttable: it is made stronger or weaker by the surrounding circumstances, and the Court of Appeal has held that vicarious liability properly follows control of the vehicle rather than bare owne
[...truncated]