Wambua v Luku & another (Civil Appeal E864 of 2024) [2026] KEHC 5665 (KLR) (27 April 2026) (Judgment)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL APPEAL NO. E864 OF 2024 ALEX BALOZI WAMBUA……………...............................APPELANT VERSUS EUNICE NZISA LUKU.......................................1ST RESPONDENT JOSEPH SAADERA………………………………….. 2ND RESPONDENT (Being an Appeal against the entire Judgment and decree of Hon. J.W Nasimiyu delivered on the 1 st July 2024 in Small Claim Court Cause SCCC 1619 of 2024 between the following parties) BETWEEN EUNICE NZISA LUKU……………………….……….. ………..CLAIMANT VERSUS ALEX BALOZI WAMBUA………………….……………1st RESPONDENT JOSEPH SAADERA………………………………..…..2nd RESPONDENT NAIROBI CIVIL APPEAL NO.E864 OF 2024 1 JUDGEMENT A. Introduction 1. This appeal challenges the judgment of Hon J.W.Nasimiyu Resident Magistrate/Adjudicator delivered in Small Claim Court Cause SCCC E1619 of 2024 on 1st July 2024, where she determined liability as against the 1st respondent at 20% and 80% as against the appellant and the 2nd respondent jointly and proceeded to award the 1st respondent damages of Kshs.9,000/= for towing charges, Kshs.17,400/= for assessment fee and Kshs.201,960.80/= (less 20% contribution) reducing it to Kshs.201,960.80/=, being repair costs incurred plus costs and interest at court rates. 2. The appellant herein being aggrieved by the said judgment, filed his memorandum of appeal dated 26.07.2024, wherein he raised the following grounds of appeal that: - (a) That the learned Adjudicator erred in law when she found that the 1st Appellant was vicariously liable for the tort of the 2nd respondent when evidence showed that the 2nd Respondent was neither an employee, servant or agent of the Appellant. NAIROBI CIVIL APPEAL NO.E864 OF 2024 2 (b) That the learned Magistrate erred when she misapplied the doctrine of vicarious liability to him and thereby ignored binding precedents. (c) That the Honorable learned Magistrate erred in law and in fact when she issued the decree that she did. 3. He therefore prayed that the appeal herein be allowed and the judgement dated 1st July 2024 and the decree of the trial court be set aside and substituted with an order dismissing the respondent’s suit in the lower court against him with costs. B. Background 4. The 1st Respondent filed her material damage claim against the appellant on her own behalf and on behalf of her insurer -ICEA Lion General insurance company limited-under its right of subrogation seeking to be awarded Kshs.253,176.00 being the outlay spent as repair costs and incidental expenses to repair her motor vehicle registration number KCD 403U- Toyota Fielder (hereinafter referred to as the 1st suit motor vehicle), which was involved in a road traffic accident allegedly caused by the appellant’s motor vehicle registration number KCZ 342H-Toyota Matatu( hereinafter referred to as the 2nd suit motor vehicle ) lawfully driven and/or controlled by his driver servant and/or agent. NAIROBI CIVIL APPEAL NO.E864 OF 2024 3 5. The particulars were that that on or about 26th March, 2021, the 1st respondents driver was lawfully driving the 1st suit motor vehicle, along Mombasa Road when at City Cabanas at around 5:45pm, the 2nd respondent (who was the appellants authorized driver/agent/servant) so negligently and recklessly drove and/ or managed the 2nd suit motor vehicle that he allowed the same to knock the 1st suit motor vehicle from the rear, as a consequence of which it was extensively damaged and the traffic case was reported at Embakasi police station. 6. As a result of the said collision, she had suffered material loss and damage, which was compensated by her insurer and thus was entitled to recover the loss from the appellant and the 2nd respondent under the doctrine of Subrogation. She therefore prayed that she be awarded special damages pleaded of Ksh.253,176.00/= plus costs and interest of the suit. 7. In response, the appellant filed his response to statement of claim denying all the particulars of fact pleaded in the statement of claim and put the 1st respondent to strict proof thereof. He further denied being vicariously liable for the actions of the 2nd respondent, who he insisted was not his employee and thus urged the court to dismiss the said claim. NAIROBI CIVIL APPEAL NO.E864 OF 2024 4 8. The 2nd respondent also filed their response to the statement of claim and put the 1st respondent to strict proof on all matter pleaded in the statement of claim. Further in response, he averred that while the accident did occur, it was caused when the 1st respondent’s driver tried to exit Mombasa Road onto the eastern bypass and as she was doing so, a bicycle suddenly appeared Infront of the 1 st suit motor vehicle, forcing the appellant to swerve to avoid crushing onto the said cyclist. As a result, the 1 st suit motor vehicle had partially moved into the 2nd suit motor vehicle lane on the right hand and despite attempting to avoid the said accident, he had crushed on the rear of the said motor vehicle, which in turn hit the cyclist. 9. The 2nd respondent blamed the driver of the 1st suit motor vehicle for being negligent and for failing to keep proper lookout of other road users and also pointed out that the damage to the 1st suit motor vehicle was also minimal, such that the cost of repairs as claimed had been highly exaggerated and therefore should be rejected since the 1 st respondent was the author of her own misfortune. He therefore urged the court to dismiss the suit with costs to them. C. The Evidence NAIROBI CIVIL APPEAL NO.E864 OF 2024 5 10. CW1 CPL Timba Chemengu, confirmed that indeed the said accident did occur and was reported at Embakasi Police station under OB126/29/03/2021 and an abstract was subsequently issued. CW2 Ronald Agwanje Samba, adopted his witness statement and confirmed that on the material day he was the one driving the 1st suit motor vehicle along Mombasa Road near cabanas, when suddenly a bicycle rider appeared right Infront of his motor vehicle forcing him to apply emergency brakes. The 2nd respondent, who was driving the 2nd suit motor vehicle, failed to keep distance and rammed into him, thereby causing damage to the 1st suit motor vehicle. 11. CW3 Kevin Kuria Muteria, a motor vehicle assessor, with ICEA Insurance Company Ltd, produced the assessment report, pre inspection report, photographs of the accident motor vehicle, invoices and receipts proving expenses incurred in repairing the 1st suit motor vehicle. While the 1st respondents final witness Vitalis Juma Masinde, a legal officer with ICEA General insurance Co ltd also produced the payment/discharge voucher and the demand letter sent to the appellant before the suit was filed. 12. The Appellant testified and adopted his witness statement, where he confirmed that he was the registered owner of the 2nd suit motor vehicle, which operated under Naekana Sacco NAIROBI CIVIL APPEAL NO.E864 OF 2024 6 plying various routes including from Nairobi -Kajiado – Namanga. As per the sacco rules, he was required to have one official driver attached to the said 2nd suit motor vehicle and had registered one Geoffrey Githinji Maripet, as his designated driver. He confirmed that his motor vehicle was indeed involved in the aforementioned road accident, but was categorical that he did not authorize the 2nd respondent to drive the said motor vehicle, nor was the said person his agent, servant and/or employee. He therefore urged the court to dismiss the claim filed. 13. The 2nd respondent also relied on the statement filed and confirmed that he was a driver with Naekana Sacco and that on the material day, was the one driving the 2nd suit motor vehicle, when the said accident occurred and blamed the driver of the 1st suit motor vehicle for switching lanes to avoid hitting a cyclist and thereby causing the said accident. RW3 Geoffrey Maripet confirm that he was the designated driver of the 2nd suit motor vehicle, but having driven the whole day, he was tired and thus opted to allow the 2nd respondent to drive him home. He confirmed that the accident occurred as explained by RW2.Both RW2 and RW3 insisted that at the time of the accident, the 1st suit motor vehicle was being driven by a woman and not CW2 as alleged. NAIROBI CIVIL APPEAL NO.E864 OF 2024 7 D.Trial Court Judgment 14. The trial court after considering the pleadings filed, evidence tendered and the parties submission did enter judgment in favour of the 1st respondent by first apportioning liability in the ratio 20% as against the 1st respondent and 80% as against the appellant and 2nd respondent jointly. On the issue of special damages, the court awarded the 1st respondent Kshs.226,051.20 for costs of repairing the 1st suit motor vehicle, Kshs.9,000/= for towing charges and Kshs.17,000/= for tracing charges, all summing up to Kshs.252,451.00/= plus costs and interest thereon. E. The Parties Submissions (1) The Appellants Submission’s . 15. The appellant submitted that the 2nd Respondent was not his employee, servant and/or driver and a such he could not be held vicariously liable for the negligence of a stranger. On vicarious liability, he relied on Salmond on Torts, 1 st Ed. Pg 83 which explains that: “A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment, ….”. He also relied on the case of Murgan v Launchbury & Others 1972 2 ALL ER 605; PA Okiro & AnotherT/A NAIROBI CIVIL APPEAL NO.E864 OF 2024 8 Kaburu Okello & Partners v Stella Karimi Kobi, Civil Appeal No. 183 of 2003 where the court held that: “In assigning vicarious liability, it arises when the tortious act is done in the scope or during the course of his employment.” 16. The appellant reiterated that in order for the 1 st Respondent to rely on the principle of vicarious liability, she has to prove that the 2nd Respondent at the time of the accident was his employee which she failed to prove as the 2 nd Respondent was driving the 2nd suit motor vehicle without his express or implied permission. Reliance was further placed on John Nderi Wamugi v Ruhesh Okumu Otiangala, Civil Appeal No. 24 of 2015, HCM Anyanzwa & 2 others vrs Luigi De Casper & Another [1981] KLR 10 and Issa Transporters Limited v Tsama (Civil Appeal 107 of 2019) [2021] KECA 296 (KLR) where agency was discussed. 17. Based on the facts and evidence the appellant concluded that the 1st respondent had failed to discharged the evidentiary burden placed on her and thus he could not be held liable for the acts of the 2nd respondent. He urged the court to allow the appeal and to discharge him off the liability wrongly placed on his shoulder NAIROBI CIVIL APPEAL NO.E864 OF 2024 9 (ii) The 1 st Respondent’s Submissions 18. The 1st Respondent submitted that the doctrine of vicarious liability imposes responsibility on an employer for the wrongful acts of an employee and/or his agent for an act committed in the course of employment or agency. The key question was whether the 2nd respondent was acting on behalf of and for the benefit of the appellant at the time of the accident. The appellants driver (RW3) did confirm that he requested the 2nd respondent to drive the 2nd suit motor vehicle during normal cause of business and this created a delegated agency relationship that extended vicarious liability to the appellant as the principal. Reliance was placed in the case of Nelson Muraya v Sparr Drillimng Company Limited [2016] eklr & in the case of Muwonge v Attorney General of Uganda 1967 EA 17 where it was held that: “The legal position is quite clear and has been quite clear for some considerable time. A master is liable for the acts of his servant committed within the course of his employment. The master remains so liable whether the acts of the servant are negligent or deliberate or wanton or criminal. The test is; where the acts done in the course of his employment?” 19. The 1st respondent pointed out that she had discharged her evidentiary burden by producing a copy of records proving that the appellant was the owner of the 2nd suit motor NAIROBI CIVIL APPEAL NO.E864 OF 2024 10 vehicle and that it had caused an accident on the material day while being driven in the normal cause of business. The evidentiary burden thus shifted to the appellant to rebut this presumption and to prove that the 2nd Respondent was a complete stranger and had no direct or implied authority to driver the 2nd suit motor vehicle, but he had failed do so. 20. The trial Magistrate having examined the evidence had rightly found that the actions of the 2nd Respondent were undertaken on behalf of and for the benefit of the appellant and the benefit arises from the presumed purpose of the vehicles use; the owner allows it’s use (either directly or through an authorized agent) for their general purposes, even if the specific task performed by the delegated driver is not directly commissioned by the owner who explicitly or implied consent rendering him vicariously liable. The appeal therefore had no merit and she thus urged the court to dismiss the same with costs and uphold the judgment and decree of the trial Court. F. Analysis and Determination 21. This being a first appeal, this Court is enjoined to re- evaluate, reassess and reanalyse the evidence on record and draw its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This NAIROBI CIVIL APPEAL NO.E864 OF 2024 11 principle was well articulated in kofinaf limited Vs Njuguna (Appeal E147 of 2021),(2023) KEELRC 2703 (KLR), (22 september 2023 ) the court stated that; Firstly, this being a first appeal, this court is obliged to reevaluate the material that was placed before the trial court and come to its own independent findings and conclusions. This position was set out in the case of selle V Associated motor Boat Co (1968) EA 123; See also (Abdul Hameed Saif V Ali Mohamed Sholan (1955) 22 EACA 270) Where the court held: “ 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 or heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judges finding 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 demeanour of a NAIROBI CIVIL APPEAL NO.E864 OF 2024 12 witness Is inconsistent with the evidence in the case generally. 22. This appeal arises from a determination of the small claims court and is limited to issues of law. I have carefully considered the record, submissions, the impugned judgment of the trial court, and the various decisions relied on. The only question that arises is whether the learned trial magistrate was right in holding that the appellant was vicariously liable for the accident that occurred on 26 th March,2021 involving the two suit motor vehicles. 23. The doctrine of vicarious liability is anchored in common law and applies where a person is held liable for the acts of another due to the existence of a special relationship such as employer–employee or principal–agent - often termed "respondeat superior”. In Muwonge v Attorney General of Uganda [1967] EA 17, Sir Charles Newbold stated: “ The legal position is quite clear and had been quite clear for some considerable time. A master is liable for the acts of his servant committed within the course of his employment. The master remains so liable whether the acts of the servant are negligent or deliberate or wanton or criminal. NAIROBI CIVIL APPEAL NO.E864 OF 2024 13 The test is; were the acts done in the course of his employment?” 24. Similarly, in Goh Choon Seng v Lee Kim Soo [1925] A.C.550, the Privy Council held that an employer is responsible for any damage caused by the negligent act of his servant in the course of performing the duties of his office even if the act incidentally involves a trespass which the employer has not authorized. Lord Phillimore suggested a classification of the possible cases into three categories as follows [at 554]:- “As regards all the cases which were brought to their Lordships' notice in the course of the argument this observation may be made. They fall under one of three heads: 1. The servant was using his master's time or his master's place or his master's horses, vehicles, machinery or tools for his own purposes: then the master is not responsible. Cases which fall under this head are easy to discover upon analysis. There is more d difficulty in separating cases under heads (2) and (3). 2. Under head (2) are to be ranged the cases where the servant is employed only to do a particular work or a particular class of work, and he does something out of the scope of his employment. Again, the master is not responsible for any mischief which he may do to a third party. NAIROBI CIVIL APPEAL NO.E864 OF 2024 14 3. Under head (3) come cases like the present, where the servant is doing some work which he is appointed to do, but does it in a way which his master has not authorized and would not have authorized, had he known of it. In these cases, the master is, nevertheless, responsible. 25.In determining these questions, the court of Appeal Court in Tabitha Nduhi Kinyua v Francis Mutua Mbuvi & Another [2014] applied a standard test formulated in the South African Case of Minister of Police v Rabie 1986(1) SA 117 (A) at 134. The test contains two parts. (i) is the subjective test- being the subjective state of mind of the employee which asks the question “did the employee act wrongfully solely for his own purposes?” and (ii) is the objective test which asks the question- if the employee was pursuing affairs in his own interests, was such deviation connected closely to his employment and the business of the employer? If the employee’s unlawful act is not even in the slightest way directed to furthering the employer’s business, but his own interests; then the employer is not vicariously liable. We note that the second leg of the test must be looked at depending on the peculiar circumstances and facts of the case. NAIROBI CIVIL APPEAL NO.E864 OF 2024 15 26.The evidence presented firmly established that the appellants driver (RW3) did authorize the 2nd respondent to driver the 2nd suit motor vehicle in the cause of its normal business and for the benefit of the appellant. The said authority was issued in the normal cause of employment and in furtherance of the appellants interest, and without doubt this delegated authority created an agency relationship and extended liability to the appellant as the principal. 27.In Mary Waitherero Vs Chella Kimani & Another (2006) eKlr it was held that “ It is well settled law that a master is liable even for acts which he has not authorised that are so connected with the Acts which he has authorised that they may be regarded as modes although improper modes of doing them. On the other hand, if the unauthorized and lawful act of the servant is not so connected with the authorised act as to be a mode of doing it but is an independent act, the master is not responsible for such a case as the servant is not acting in the course of employment but has gone outside it.” NAIROBI CIVIL APPEAL NO.E864 OF 2024 16 G. Disposition 28. This Appeal therefore lacks merit and the same is dismissed with costs to the 1st respondent. 29. The same is assessed at Kshs.100,000/= all inclusive. 30. Stay of execution 45 days. 31. It is so ordered. Dated, signed, and delivered in chambers at KIAMBU this 27th day of APRIL, 2026. FRANCIS RAYOLA OLEL JUDGE Delivered on the virtual platform, Team this 27th day of April ,2026. In the presence of: - ……………………N/A…………………………………..Appellant ………………………N/A………………………………. Respondent ………………………MARTIN………………………….Court Assistant NAIROBI CIVIL APPEAL NO.E864 OF 2024 17 NAIROBI CIVIL APPEAL NO.E864 OF 2024 18