( Being an appeal from the judgment of Hon. Martin N. Mutua, Senior Resident Magistrate, in Makueni CMCC No. 79 of 2019, delivered on the 7 th March 2025 ).
JUDGMENT.
1. By a plaint dated 14 th May 2019 , the Plaintiff sued the Defendants, for damages of Kshs. 3,803,445.00 being the cost incurred for the damage caused to their motor vehicle registration number KCE 658S that was involved in an accident on the 17 th May 2016 with the Defendants motor vehicle registration number KBM 776F/ZD 6255 .
2. In the initial claim, the Plaintiff had also sued Consolidated Bank, as the 3 rd Defendant, but the 3 rd Defendant was dropped from the proceedings in the course of the trial. The main suit, after efforts to settle the suit out of court failed, eventually proceeded against the 1 st and 2 nd Defendants only. The 1 st and 2 nd Defendants did file their defences to the claim. At the hearing, the Plaintiff called four witnesses and closed the Plaintiffs case. The 1 st Defendant called 2 witnesses and closed the 1 st Defendants case. The 2 nd Defendant did not call any witnesses to support their case.
3. The trial court, after considering the submissions of the parties did render its judgment on the 7 th of March 2025. In the judgment, which is the subject of this appeal, the learned trial Magistrate dismissed the Plaintiffs suit against the Defendants and stated as follows in the judgment:
“ 9. It is therefore convincing that the 1 st Defendant was not the registered owner of KBM 776F on the night of 17 th & 18 th May 2016 at the time of the accident and I shall hold as such.
10. Consequently, the 1 st Defendant having not been the owner of KBM 776F cannot be vicariously liable for the accident and thus no liability will attach to the 1 st Defendant and therefore the Plaintiff has failed to proof its case against the 1 st and 2 nd Defendants on a balance of probability ”.
Analysis and determination.
4. In determining this appeal, the court has crystallised the issues into three:
i. Did the learned trial Magistrate err in finding that the Plaintiff had not proved ownership of the motor vehicle registration number KBM 776F to either the 1 st or 2 nd Defendants?
ii. If no, is the Plaintiff entitled to the prayers sought in the plaint?
iii. Who should bear the costs .
5. This being a first appeal, this court is enjoined to consider the evidence and determination of the trial court, being cautious that the court did not see or hear the witnesses first hand and make its own conclusion on whether the trial court properly evaluated the evidence and the law and correctly arrived at the determination as it did. In so doing, the court is guided by the decisions in Okeno vs Republic and Selle & Another –vs- Associated Motor Boat Co. Ltd. & Others [1968] EA 123 in the following terms:
“I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the High 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 conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally” .
6. On the first issue, the Plaintiff presented 4 witnesses. These are the legal officer, Ms. Maurine Wangari , from Britam Insurance Co Ltd who presented the exhibits 1-12 in support of the material damages claim by the Plaint to support the claim for the damages, repairs, invoices and discharge voucher payments made to support the claim of Kshs. 3,803,445.00. PW2, Sergeant Kelvin Njagi represented the Investigating officer who had retired as at the time of the hearing, PW3, James Mucai Githinji, an employee of the Plaintiff who was driving the subject motor vehicle and PW4, Steve Kangethe Kamau , the motor vehicle assessor who assessed and prepared a report on the Plaintiff’s motor vehicle. All the witnesses were cross examined by the 1 st and 2 nd Defendants Counsel.
7. The 1 st Defendant testified as DW1 and also called a witness from National Transport and Safety Authority (NTSA) who testified as DW2. The two witnesses were equally cross examined by the Plaintiffs and the 2 nd Defendants Counsel. As already stated, the 2 nd Defendant did not call any witnesses. The gist of the 1 st Defendants evidence was that they were not the registered or beneficial owners of the subject motor vehicle at the time of the accident.
8. In the judgment, the learned trial Magistrate determined correctly that the Plaintiff had not provided evidence that the 1 st Defendant was the registered or beneficial owner of the suit motor vehicle and relied on the letter and transfer documents provided by DW2, that showed the motor vehicle was transferred to the 1 st Defendant well after the accident. At the time of the accident, the motor vehicle was registered in the name of Ms. Margaret Wothaya Kirweya . Ms. Margaret Wothaya Kirweya was not joined a party to the proceedings. In addition, the 1 st Defendant, by virtue of the evidence of DW2, was deemed not to be an agent or principal of the 2 nd Defendant, and thus no vicarious liability could attach to him.
9. The basis of the dismissal of the Plaintiff’s case was the lack of a nexus between the 1 st and 2 nd Defendant, to warrant a verdict against the Defendants. In the end, by the learned trial court making a determination absolving the 1 st Defendant from liability, the court made a correct call as the 1 st Defendant was sold the motor vehicle by Margaret Wothaya Kirweya after the accident had occurred. Indeed, the 1 st Plaintiff had applied to be struck from the proceedings on account of the documents from NTSA that were not disputed by the 2 nd Defendant, but the court determined that the issue of ownership be dealt with within the hearing of the suit.
10. I find and uphold the finding of the trial court that the 1 st Defendant be absolved from any liability in regard to the accident involving the two motor vehicles.
11. As regards the 2 nd Defendant, the court has carefully relooked at the documents produced by the parties herein. I note from the said documents that Ms. Margaret Wothaya Kirweya was the registered owner of the offending motor vehicle. In addition, the letter from the NTSA dated 5 th August 2021, addressed to the Chief Magistrate, Makueni Law Courts, stated that the said Ms. Margaret Wothaya Kirweya transferred the motor vehicle to the 1 st Defendant on 9 th January 2017. The accident occurred on the 17 th May 2016. The same is supported by the registration certificate for the said motor vehicle registration number KBM 776F.
12. The CR12 dated 1 st April, 2021 for the 2 nd Defendant has listed Ms. Margaret Kirweya, as one of the directors of Desire Traders Limited, the 2 nd Defendant. In essence, the said Margaret Wothaya Kirweya was a director of the 2 nd Defendant. The insurance documents presented to court also show the motor vehicle was insured by CIC Insurance during the period of the accident.
13. It was thus an error in the determination of the learned trial Magistrate to determine that the Plaintiff had not proved that ownership of the motor vehicle registration number KBM 776F at the time of the accident. It was clearly evident that the 2 nd Defendant was the registered owner of the ZD 6255, that was being hauled by KBM 776F . For the purpose of the accident, the two are inseparable. It was thus an error for the learned trial court not to make thus finding on ownership of the offending motor vehicle.
14. The evidence of PW4 was that he was the driver of the suit motor vehicle. The witness statement of the loader equally confirms the occurrence of the accident. In the case cited by the 2 nd Defendant in their submissions, they correctly state that duty to provide evidence is on the party that alleges, both to either support or refute the occurrence of a fact in issue. The court stated thus in Kahindi Kithi v Trustees of the Presbyterian Church of East Africa [2022] eKLR, the court cited Statpack Industries v James Mbithi Munyao [2005] eKLR :
“ The Plaintiff must prove a causal link between someone's negligence and his injury. The Plaintiff must adduce evidence from which on a balance of probability, a connection between the two may be drawn. Not every injury is necessarily as a result of someone's negligence. An injury per se is not sufficient to hold someone liable .”
15. The evidence on record did not point directly to the culpability of the Plaintiff in causing the accident. The evidence pointed towards the driver of the 2 nd Defendants motor vehicle. Having so found, it would not be difficult for this court to find that the trial court should have found wholly for the Plaintiff as against the 2 nd Defendant.
16. I thus proceed to find for the Plaintiff and set aside the dismissal order as against the 2 nd Defendant and find the Plaintiff had provided sufficient evidence to hold the 2 nd Defendant liable fully for the accident .
17. Having so found, I note that the learned trial Magistrate proceeded to correctly hold that save for the aspect of ownership, he would have found for the Plaintiff for the sum of Kshs. 3,803,240.00, made up of Kshs. 3,720,000.00 for the total loss, Kshs. 13,210.00 for Assessors fees, Kshs. 68,930.00 for tracing fees and Kshs. 1,100.00 for search fees.
18. The Plaintiff through PW1 and PW4 produced documents including the assessment reports, invoices and discharge vouchers for the payments done to compensate the Plaintiff. They support the claim of Kshs. 3,803,270.00 .
19. I will thus proceed to enter judgment for the Plaintiff as against the 2 nd Defendant for the sum of Kshs. 3,803,270.00 .
20. The costs of the suit before the trial court and appeal are awarded to the Appellant as against the 2nd Defendant .
Dated, signed and delivered virtually via Microsoft Teams this 12 th Day of August 2026.
HCCA NO. E024 WEST COAST EA LTD VS HASSAN BASHIR & 2 OTHERS JUDGMENT Pg. 6
JUDGMENT.
1. By a plaint dated 14 th May 2019 , the Plaintiff sued the Defendants, for damages of Kshs. 3,803,445.00 being the cost incurred for the damage caused to their motor vehicle registration number KCE 658S that was involved in an accident on the 17 th May 2016 with the Defendants motor vehicle registration number KBM 776F/ZD 6255 .
2. In the initial claim, the Plaintiff had also sued Consolidated Bank, as the 3 rd Defendant, but the 3 rd Defendant was dropped from the proceedings in the course of the trial. The main suit, after efforts to settle the suit out of court failed, eventually proceeded against the 1 st and 2 nd Defendants only. The 1 st and 2 nd Defendants did file their defences to the claim. At the hearing, the Plaintiff called four witnesses and closed the Plaintiffs case. The 1 st Defendant called 2 witnesses and closed the 1 st Defendants case. The 2 nd Defendant did not call any witnesses to support their case.
3. The trial court, after considering the submissions of the parties did render its judgment on the 7 th of March 2025. In the judgment, which is the subject of this appeal, the learned trial Magistrate dismissed the Plaintiffs suit against the Defendants and stated as follows in the judgment:
“ 9. It is therefore convincing that the 1 st Defendant was not the registered owner of KBM 776F on the night of 17 th & 18 th May 2016 at the time of the accident and I shall hold as such.
10. Consequently, the 1 st Defendant having not been the owner of KBM 776F cannot be vicariously liable for the accident and thus no liability will attach to the 1 st Defendant and therefore the Plaintiff has failed to proof its case against the 1 st and 2 nd Defendants on a balance of probability ”.
Analysis and determination.
4. In determining this appeal, the court has crystallised the issues into three:
i. Did the learned trial Magistrate err in finding that the Plaintiff had not proved ownership of the motor vehicle registration number KBM 776F to either the 1 st or 2 nd Defendants?
ii. If no, is the Plaintiff entitled to the prayers sought in the plaint?
iii. Who should bear the costs .
5. This being a first appeal, this court is enjoined to consider the evidence and determination of the trial court, being cautious that the court did not see or hear the witnesses first hand and make its own conclusion on whether the trial court properly evaluated the evidence and the law and correctly arrived at the determination as it did. In so doing, the court is guided by the decisions in Okeno vs Republic and Selle & Another –vs- Associated Motor Boat Co. Ltd. & Others [1968] EA 123 in the following terms:
“I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the High 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 conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally” .
6. On the first issue, the Plaintiff presented 4 witnesses. These are the legal officer, Ms. Maurine Wangari , from Britam Insurance Co Ltd who presented the exhibits 1-12 in support of the material damages claim by the Plaint to support the claim for the damages, repairs, invoices and discharge voucher payments made to support the claim of Kshs. 3,803,445.00. PW2, Sergeant Kelvin Njagi represented the Investigating officer who had retired as at the time of the hearing, PW3, James Mucai Githinji, an employee of the Plaintiff who was driving the subject motor vehicle and PW4, Steve Kangethe Kamau , the motor vehicle assessor who assessed and prepared a report on the Plaintiff’s motor vehicle. All the witnesses were cross examined by the 1 st and 2 nd Defendants Counsel.
7. The 1 st Defendant testified as DW1 and also called a witness from National Transport and Safety Authority (NTSA) who testified as DW2. The two witnesses were equally cross examined by the Plaintiffs and the 2 nd Defendants Counsel. As already stated, the 2 nd Defendant did not call any witnesses. The gist of the 1 st Defendants evidence was that they were not the registered or beneficial owners of the subject motor vehicle at the time of the accident.
8. In the judgment, the learned trial Magistrate determined correctly that the Plaintiff had not provided evidence that the 1 st Defendant was the registered or beneficial owner of the suit motor vehicle and relied on the letter and transfer documents provided by DW2, that showed the motor vehicle was transferred to the 1 st Defendant well after the accident. At the time of the accident, the motor vehicle was registered in the name of Ms. Margaret Wothaya Kirweya . Ms. Margaret Wothaya Kirweya was not joined a party to the proceedings. In addition, the 1 st Defendant, by virtue of the evidence of DW2, was deemed not to be an agent or principal of the 2 nd Defendant, and thus no vicarious liability could attach to him.
9. The basis of the dismissal of the Plaintiff’s case was the lack of a nexus between the 1 st and 2 nd Defendant, to warrant a verdict against the Defendants. In the end, by the learned trial court making a determination absolving the 1 st Defendant from liability, the court made a correct call as the 1 st Defendant was sold the motor vehicle by Margaret Wothaya Kirweya after the accident had occurred. Indeed, the 1 st Plaintiff had applied to be struck from the proceedings on account of the documents from NTSA that were not disputed by the 2 nd Defendant, but the court determined that the issue of ownership be dealt with within the hearing of the suit.
10. I find and uphold the finding of the trial court that the 1 st Defendant be absolved from any liability in regard to the accident involving the two motor vehicles.
11. As regards the 2 nd Defendant, the court has carefully relooked at the documents produced by the parties herein. I note from the said documents that Ms. Margaret Wothaya Kirweya was the registered owner of the offending motor vehicle. In addition, the letter from the NTSA dated 5 th August 2021, addressed to the Chief Magistrate, Makueni Law Courts, stated that the said Ms. Margaret Wothaya Kirweya transferred the motor vehicle to the 1 st Defendant on 9 th January 2017. The accident occurred on the 17 th May 2016. The same is supported by the registration certificate for the said motor vehicle registration number KBM 776F.
12. The CR12 dated 1 st April, 2021 for the 2 nd Defendant has listed Ms. Margaret Kirweya, as one of the directors of Desire Traders Limited, the 2 nd Defendant. In essence, the said Margaret Wothaya Kirweya was a director of the 2 nd Defendant. The insurance documents presented to court also show the motor vehicle was insured by CIC Insurance during the period of the accident.
13. It was thus an error in the determination of the learned trial Magistrate to determine that the Plaintiff had not proved that ownership of the motor vehicle registration number KBM 776F at the time of the accident. It was clearly evident that the 2 nd Defendant was the registered owner of the ZD 6255, that was being hauled by KBM 776F . For the purpose of the accident, the two are inseparable. It was thus an error for the learned trial court not to make thus finding on ownership of the offending motor vehicle.
14. The evidence of PW4 was that he was the driver of the suit motor vehicle. The witness statement of the loader equally confirms the occurrence of the accident. In the case cited by the 2 nd Defendant in their submissions, they correctly state that duty to provide evidence is on the party that alleges, both to either support or refute the occurrence of a fact in issue. The court stated thus in Kahindi Kithi v Trustees of the Presbyterian Church of East Africa [2022] eKLR, the court cited Statpack Industries v James Mbithi Munyao [2005] eKLR :
“ The Plaintiff must prove a causal link between someone's negligence and his injury. The Plaintiff must adduce evidence from which on a balance of probability, a connection between the two may be drawn. Not every injury is necessarily as a result of someone's negligence. An injury per se is not sufficient to hold someone liable .”
15. The evidence on record did not point directly to the culpability of the Plaintiff in causing the accident. The evidence pointed towards the driver of the 2 nd Defendants motor vehicle. Having so found, it would not be difficult for this court to find that the trial court should have found wholly for the Plaintiff as against the 2 nd Defendant.
16. I thus proceed to find for the Plaintiff and set aside the dismissal order as against the 2 nd Defendant and find the Plaintiff had provided sufficient evidence to hold the 2 nd Defendant liable fully for the accident .
17. Having so found, I note that the learned trial Magistrate proceeded to correctly hold that save for the aspect of ownership, he would have found for the Plaintiff for the sum of Kshs. 3,803,240.00, made up of Kshs. 3,720,000.00 for the total loss, Kshs. 13,210.00 for Assessors fees, Kshs. 68,930.00 for tracing fees and Kshs. 1,100.00 for search fees.
18. The Plaintiff through PW1 and PW4 produced documents including the assessment reports, invoices and discharge vouchers for the payments done to compensate the Plaintiff. They support the claim of Kshs. 3,803,270.00 .
19. I will thus proceed to enter judgment for the Plaintiff as against the 2 nd Defendant for the sum of Kshs. 3,803,270.00 .
20. The costs of the suit before the trial court and appeal are awarded to the Appellant as against the 2nd Defendant .
Dated, signed and delivered virtually via Microsoft Teams this 12 th Day of August 2026.
HCCA NO. E024 WEST COAST EA LTD VS HASSAN BASHIR & 2 OTHERS JUDGMENT Pg. 6