(Being an appeal from the judgment of Hon. B.C Mulema dated 12.3.25 in Milimani MCC No E6051 of 2022)
By a plaint dated 28.11.2022, the respondent (then plaintiff) sued the appellant (then 1 st defendant) and Simon Kinyanjui Mungai (2 nd defendant) seeking special and general damages for personal injury sustained in an accident involving motorcycle reg No KMFV 043G which was then registered in the name of the appellant. The appellant opposed the suit vide a statement of defence dated 5.5.23 denying the plaintiff’s claim. Their defence was that they were an authorized dealer and/or supplier of motorcycles countrywide. That at the time of the accident, they had sold the motorcycle reg No KMFV 043G to a third party and had surrendered possession to the said third party. The appellant took out third party notice dated 5.5.23 against one Phyllis Wambui Mungai. The 2 nd defendant before the trial court and the third party neither entered appearance nor filed defence. Interlocutory judgment was entered against both of them.
At the trial before the magistrate’s court, the respondent testified and adopted his written statement which had been filed contemporaneously with the plaint. His case in summary was that the 1 st defendant (appellant) was the registered owner of motor cycle reg No KMFV 043G while the 2 nd defendant was the rider. That on the27th May 32022 he was walking along Kangundo road when rider of motor cycle Regi. No. KMFV 043G lost control of the same thereby causing it to knock him. He produced amongst other documents, police abstract, which showed that the 2 nd defendant was to blame for the accident.
The appellant called one Erastus Ndiragu (PW1) as its sole witness. His evidence was that at the time of the accident, the motorcycle had been registered under the appellant’s name though the same had been sold to a third party.
The learned magistrate in her judgment on liability rendered herself as follows:
“I am of the view that the 1 st defendant cannot be held liable for the actions of the 2 nd defendant as there was no relationship established between the two to warrant the 1 st defendant be subjected to vicarious liability. The 1 st defendant averred (sic) they sold motorcycle reg No KMFV 043G to the third party and produced an invoice as proof of the sale. Further they took out a third-party notice against the third party. However, the court finds that an invoice is not conclusive evidence of the sale of motorcycle reg No KMFV 043G. The 1 st defendant ought to have adduced a copy of the sale receipt. This notwithstanding, the court finds that the 1 st defendant stands to be indemnified by the third party by dint of the third-party notice. The 2 nd defendant and the third party failed to participate in this suit and ventilate their side (sic). Thus, the court entered interlocutory judgment against them both. From the foregoing, the court finds the 1 st defendant, 2 nd defendant and third party herein severally and jointly liable for the accident ”
The learned magistrate proceeded to assess quantum of damage payable to the respondent in the sum of Kshs. 757,850.
The appellant, being aggrieved by the judgment, filed the appeal citing four grounds of appeal but which can be summarized as challenging the trial court’s finding on liability. In particular, the appellant’s case is that the magistrate’s finding was contradictory.
APPELLANT’S SUBMISSIONS
The appellant submitted that the learned magistrate erred in law by finding it liable after making a finding of fact that the 2 nd defendant was not an authorized agent of the appellant. The appellant cited the case of Sheikh Said Transporters v Wilson Katana & Another (2001) eKLR.
The appellant submitted that it presented cogent evidence showing that the third party was the owner of motorcycle reg No KMFV 043G. The appellant cited the case of Securicor Kenya Ltd v Kyumba Holdings Ltd (2005) eKLR and Osapil v Koddy (2000) 1 EALA 187.
The appellant further relied on the case of Gichira Peter v Lucy Wambura Ngaku & Another (2021) eKLR.
RESPONDENT’S SUBMISSIONS
The respondents submitted that a copy of m/v records produced as his exhibit indicated that the appellant was the registered owner of motorcycle KMFV 043G. The respondent submitted that the invoice produced by the appellant was not sufficient evidence that it had sold the motorcycle to the third party as alleged. The respondent relied on the case of Great Lakes Transport Co. (U) Ltd v Kenya Reserve Authority (2009) eKLR and the case of Car & General (Trading) Limited v Mashiko & Another (2024) KEHC 148 (KLR).
ANALYSIS AND DETERMINATION
This being a first appeal, it is the duty of the court to review the evidence adduced before the lower court and satisfy itself that the decision was well founded. In Selle and Another v Associated Motor Boat Co. Ltd & others (1968) EA, 123, this principle was enunciated thus:
“…this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court…is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusion though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect…”
Accordingly, I have reevaluated the evidence that was presented before the lower court. The appeal is only against liability. The respondent’s case before the trial court was that on the 22.5.2022, he was walking along Kangundo road when motorcycle reg No KMFV 043G lost control and knocked him down. That the police conducted investigations and blamed the rider, 2 nd defendant. He blamed the rider because he had lost control.
The appellant on its part called a witness, DW1, who testified that though the motorcycle was registered in its name, it is not the beneficial owner neither was it in possession of the motorcycle as it had sold it to third party by the name of Phyllis Wambui Mungai. The appellant denied being the principal or employer of the 2 nd defendant. The appellant successfully had the third party joined into the suit and had interlocutory judgment against the said Phyllis Wambui Mungai.
It is a cardinal principle in law that he who alleges must prove. The respondent bore the burden of proving that the motorcycle was being ridden by the 2 nd defendant on the appellant’s business or purpose. Section 109 of the Evidence Act provides:
“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence unless it is provided by law that the proof of that fact shall lie on any particular person”
The appellant’s witness denied on oath that the 2 nd defendant was its agent or that it was vicariously liable for his negligence. He presented evidence which in my assessment proved on a balance of probabilities that it no longer had possession or beneficial interest in motorcycle reg No. KMFV 043G.
In the case of Sheik Said Transporters v Wilson Katana & Another (2001) eKLR the court stated as follows:
“It must be shown that the motor vehicle was being driven on the owner’s business or for the owner’s purposes as summed up in the passage in OMROD V CROSSVILLE MOTOR SERVICES LTD 2 All E.R. 753 at pages 754 and 755 when Denlay L.J. (as he then was) said:
It has often been supposed that the owner of a vehicle is only liable for the negligence of the driver if the driver is his servant acting in the course of his employment. That is not correct; the owner is liable if the driver is his agent, that is to say, if the driver is with the owner’s consent driving the car on the owner’s business or for owner’s purpose.
In the present case, it is certain that the motor vehicle was at the time not being driven for the owner’s business or purposes ”
From the entire evidence on record, the respondent failed to establish any relationship between the appellant and 2 nd defendant who was indisputably riding the motorcycle. The trial magistrate correctly found so in the judgment when she stated:
“I am of the view that the 1 st defendant (read appellant) cannot be held liable for the actions of the 2 nd defendant as there was no relationship established between the two to warrant the 1 st defendant be subjected to vicarious liability.”
It is manifest therefore that, the learned magistrate erred in fact and law by arriving at a contradictory finding that the appellant was liable in negligence.
In conclusion, I find that the appellant demonstrated with evidence that his case fell within the scope of the exception to the rule laid down under section 8 of the Traffic Act which states as follows:
“The person in whose name a vehicle is registered shall unless the contrary is provided be deemed to be the owner of the vehicle”
As such, the appellant was not the owner of the vehicle at the time of the accident and could not be held vicariously liable in negligence for the acts of the 2 nd defendant. The judgment by the learned magistrate was clearly against the weight of evidence. I order that:
a) The appeal herein succeeds
b) The judgment of the trial magistrate is set aside and replaced with one allowing the suit against the 2 nd defendant and third party jointly and severally and quantum assessed as per the lower court’s judgement.
c) The suit against the 1 st defendant (appellant) is dismissed.
d) I award the appellant the costs of the appeal and of the suit before the lower court.
DATED, SIGNED AND DELIVERED THIS 21 st JULY 2026
D.O. ONYANGO
JUDGE.
11
By a plaint dated 28.11.2022, the respondent (then plaintiff) sued the appellant (then 1 st defendant) and Simon Kinyanjui Mungai (2 nd defendant) seeking special and general damages for personal injury sustained in an accident involving motorcycle reg No KMFV 043G which was then registered in the name of the appellant. The appellant opposed the suit vide a statement of defence dated 5.5.23 denying the plaintiff’s claim. Their defence was that they were an authorized dealer and/or supplier of motorcycles countrywide. That at the time of the accident, they had sold the motorcycle reg No KMFV 043G to a third party and had surrendered possession to the said third party. The appellant took out third party notice dated 5.5.23 against one Phyllis Wambui Mungai. The 2 nd defendant before the trial court and the third party neither entered appearance nor filed defence. Interlocutory judgment was entered against both of them.
At the trial before the magistrate’s court, the respondent testified and adopted his written statement which had been filed contemporaneously with the plaint. His case in summary was that the 1 st defendant (appellant) was the registered owner of motor cycle reg No KMFV 043G while the 2 nd defendant was the rider. That on the27th May 32022 he was walking along Kangundo road when rider of motor cycle Regi. No. KMFV 043G lost control of the same thereby causing it to knock him. He produced amongst other documents, police abstract, which showed that the 2 nd defendant was to blame for the accident.
The appellant called one Erastus Ndiragu (PW1) as its sole witness. His evidence was that at the time of the accident, the motorcycle had been registered under the appellant’s name though the same had been sold to a third party.
The learned magistrate in her judgment on liability rendered herself as follows:
“I am of the view that the 1 st defendant cannot be held liable for the actions of the 2 nd defendant as there was no relationship established between the two to warrant the 1 st defendant be subjected to vicarious liability. The 1 st defendant averred (sic) they sold motorcycle reg No KMFV 043G to the third party and produced an invoice as proof of the sale. Further they took out a third-party notice against the third party. However, the court finds that an invoice is not conclusive evidence of the sale of motorcycle reg No KMFV 043G. The 1 st defendant ought to have adduced a copy of the sale receipt. This notwithstanding, the court finds that the 1 st defendant stands to be indemnified by the third party by dint of the third-party notice. The 2 nd defendant and the third party failed to participate in this suit and ventilate their side (sic). Thus, the court entered interlocutory judgment against them both. From the foregoing, the court finds the 1 st defendant, 2 nd defendant and third party herein severally and jointly liable for the accident ”
The learned magistrate proceeded to assess quantum of damage payable to the respondent in the sum of Kshs. 757,850.
The appellant, being aggrieved by the judgment, filed the appeal citing four grounds of appeal but which can be summarized as challenging the trial court’s finding on liability. In particular, the appellant’s case is that the magistrate’s finding was contradictory.
APPELLANT’S SUBMISSIONS
The appellant submitted that the learned magistrate erred in law by finding it liable after making a finding of fact that the 2 nd defendant was not an authorized agent of the appellant. The appellant cited the case of Sheikh Said Transporters v Wilson Katana & Another (2001) eKLR.
The appellant submitted that it presented cogent evidence showing that the third party was the owner of motorcycle reg No KMFV 043G. The appellant cited the case of Securicor Kenya Ltd v Kyumba Holdings Ltd (2005) eKLR and Osapil v Koddy (2000) 1 EALA 187.
The appellant further relied on the case of Gichira Peter v Lucy Wambura Ngaku & Another (2021) eKLR.
RESPONDENT’S SUBMISSIONS
The respondents submitted that a copy of m/v records produced as his exhibit indicated that the appellant was the registered owner of motorcycle KMFV 043G. The respondent submitted that the invoice produced by the appellant was not sufficient evidence that it had sold the motorcycle to the third party as alleged. The respondent relied on the case of Great Lakes Transport Co. (U) Ltd v Kenya Reserve Authority (2009) eKLR and the case of Car & General (Trading) Limited v Mashiko & Another (2024) KEHC 148 (KLR).
ANALYSIS AND DETERMINATION
This being a first appeal, it is the duty of the court to review the evidence adduced before the lower court and satisfy itself that the decision was well founded. In Selle and Another v Associated Motor Boat Co. Ltd & others (1968) EA, 123, this principle was enunciated thus:
“…this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court…is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusion though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect…”
Accordingly, I have reevaluated the evidence that was presented before the lower court. The appeal is only against liability. The respondent’s case before the trial court was that on the 22.5.2022, he was walking along Kangundo road when motorcycle reg No KMFV 043G lost control and knocked him down. That the police conducted investigations and blamed the rider, 2 nd defendant. He blamed the rider because he had lost control.
The appellant on its part called a witness, DW1, who testified that though the motorcycle was registered in its name, it is not the beneficial owner neither was it in possession of the motorcycle as it had sold it to third party by the name of Phyllis Wambui Mungai. The appellant denied being the principal or employer of the 2 nd defendant. The appellant successfully had the third party joined into the suit and had interlocutory judgment against the said Phyllis Wambui Mungai.
It is a cardinal principle in law that he who alleges must prove. The respondent bore the burden of proving that the motorcycle was being ridden by the 2 nd defendant on the appellant’s business or purpose. Section 109 of the Evidence Act provides:
“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence unless it is provided by law that the proof of that fact shall lie on any particular person”
The appellant’s witness denied on oath that the 2 nd defendant was its agent or that it was vicariously liable for his negligence. He presented evidence which in my assessment proved on a balance of probabilities that it no longer had possession or beneficial interest in motorcycle reg No. KMFV 043G.
In the case of Sheik Said Transporters v Wilson Katana & Another (2001) eKLR the court stated as follows:
“It must be shown that the motor vehicle was being driven on the owner’s business or for the owner’s purposes as summed up in the passage in OMROD V CROSSVILLE MOTOR SERVICES LTD 2 All E.R. 753 at pages 754 and 755 when Denlay L.J. (as he then was) said:
It has often been supposed that the owner of a vehicle is only liable for the negligence of the driver if the driver is his servant acting in the course of his employment. That is not correct; the owner is liable if the driver is his agent, that is to say, if the driver is with the owner’s consent driving the car on the owner’s business or for owner’s purpose.
In the present case, it is certain that the motor vehicle was at the time not being driven for the owner’s business or purposes ”
From the entire evidence on record, the respondent failed to establish any relationship between the appellant and 2 nd defendant who was indisputably riding the motorcycle. The trial magistrate correctly found so in the judgment when she stated:
“I am of the view that the 1 st defendant (read appellant) cannot be held liable for the actions of the 2 nd defendant as there was no relationship established between the two to warrant the 1 st defendant be subjected to vicarious liability.”
It is manifest therefore that, the learned magistrate erred in fact and law by arriving at a contradictory finding that the appellant was liable in negligence.
In conclusion, I find that the appellant demonstrated with evidence that his case fell within the scope of the exception to the rule laid down under section 8 of the Traffic Act which states as follows:
“The person in whose name a vehicle is registered shall unless the contrary is provided be deemed to be the owner of the vehicle”
As such, the appellant was not the owner of the vehicle at the time of the accident and could not be held vicariously liable in negligence for the acts of the 2 nd defendant. The judgment by the learned magistrate was clearly against the weight of evidence. I order that:
a) The appeal herein succeeds
b) The judgment of the trial magistrate is set aside and replaced with one allowing the suit against the 2 nd defendant and third party jointly and severally and quantum assessed as per the lower court’s judgement.
c) The suit against the 1 st defendant (appellant) is dismissed.
d) I award the appellant the costs of the appeal and of the suit before the lower court.
DATED, SIGNED AND DELIVERED THIS 21 st JULY 2026
D.O. ONYANGO
JUDGE.
11