[2022] KEHC 10754 (KLR)

Bolpak Trading Company Limited v Munga & another (Civil Appeal 372 of 2018) [2022] KEHC 10754 (KLR) (Civ) (7 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10754 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 372 of 2018

CW Meoli, J

June 7, 2022

Between

Bolpak Trading Company Limited

Appellant

and

Charles Njoroge Munga

1st Respondent

Erickson Mbuthia

2nd Respondent

(Being an appeal from the judgment of D.A Ocharo, SRM, Delivered on 24th July 2018 in Nairobi Milimani CMCC No. 4031 of 2016)

Judgment

1. This appeal emanates from the judgment delivered on July 24, 2018 in Nairobi Milimani CMCC No. 4031 of 2016. The suit was commenced by a plaint filed on June 23, 2016 by Charles Njoroge Munga the plaintiff in the lower court (hereafter the 1st respondent) against Bolpak Trading Company Limited (hereafter the Appellant) and Erickson Mbuthia (hereafter the 2nd Respondent) who were the 1st and 2nd defendants respectively in the lower court. The 1st Respondent’s claim was a material damage claim arising from a road traffic accident that occurred on November 28, 2015. It was averred that the Appellant was the lawful owner of motor vehicle registration number KAY 518R whereas the 2nd respondent being an agent of the appellant was the driver of the said motor vehicle. It was further alleged the 2nd Respondent by himself and/or his authorized driver, agent and/or servant managed and/or controlled motor vehicle registration number KAY 518R so negligently and recklessly that he and/or his agent caused the said motor vehicle to lose control and collide with the 1st respondent’s motor vehicle registration number KAL 968M causing it to sustain major damages. Vicarious liability for the actions of the 2nd Respondent was pleaded against the Appellant.

2. The appellant filed a statement of defence on July 27, 2016 denying the key averments in the plaint particularly that the 2nd respondent was its agent and that it was vicariously liable for the acts of the 2nd respondent, and or that it was the owner of motor vehicle KAY 518R. The 2nd respondent despite being served with summons, failed to enter appearance or file defence and default judgment was entered as against him on February 1, 2017. The suit proceeded to full hearing during which both the appellant and 1st respondent adduced evidence. In its judgment, the trial court found in favour of the 1st respondent and held the appellant vicariously liable having failed to disprove that it was the owner of motor vehicle KAY 518R. Judgment for a sum of Kshs. 291,200/= as pleaded in the plaint was entered for the 1st respondent against the appellant and 2nd respondent.

3. Aggrieved with the outcome, the appellant preferred this appeal which is based on the following grounds: -“1. The learned magistrate erred in law and in fact by finding that the Appellant was vicariously liable for the negligence alleged by the 1st Respondent while the Appellant’s witness evidence on record was that the 2nd Respondent was not its driver, servant, employee and or agent at the material time.2. The learned magistrate erred in law and in fact by failing to find that the 1st Respondent’s cause of action is/was against the 2nd Respondent as the Appellant is/was only an importer and financier of the motor vehicle reg. no. KAY 518R which the Appellant sold to one Hulda W. Mwasela vide sale agreement executed on 31st July 2007 and if she sold the motor vehicle to the 2nd Respondent, then it is the 2nd Respondent who was the beneficial owner in actual possession, in actual control, actual management and the employer of the driver and or employee of the driver of the accident motor vehicle reg. no. KAY 518R on the alleged accident date on 28th November 2015. 3.The learned magistrate erred in law and in fact by failing to take into account that it was expressly provided in the contract under clause 6 of the sale agreement executed on 31st July 2007 that it was the sole responsibility of the buyer to be liable for all injuries or damages should the vehicle be involved in an accident notwithstanding the fact that the motor vehicle has not been formally transferred to the buyer’s name and in law the motor vehicle was being used by the 2nd Respondent as Employer/buyer and/by their driver/agent or servant for the benefit of the said buyers and not the Appellant hence it was wrong and erroneous for the Appellant to be held liable for the 1st Respondent’s damages by the learned magistrate whatsoever.4. The learned magistrate erred in law and in fact by failing to take into account that the 1st Respondent did not adduce any documentary evidence to prove his ownership, to wit, the sale agreements for the motor vehicle Reg. No. KAL 968M which he testified that it was not registered under his name whatsoever.5. The learned magistrate erred in law and in fact by failing to take into account that the 1st Respondent also testified that he did not take the photographs of the damaged motor vehicle, which was taken by a motor vehicle assessor, but the mandatory assessor’s report was not adduced as evidence at the trial court. Hence the 1st Respondent’s case was weak and substandard and ought to have been dismissed with costs.6. The learned magistrate erred in law and in fact disregarding the evidence of the Appellant’s witness who adduced a sale agreement between the Appellant and a buyer Hulda W. Mwasera for motor vehicle reg. no KAY 518R dated 31st July 2007 signed by both parties and stamped whose authenticity was not challenged or disputed by the 1st Respondent whatsoever and was admitted as evidence that the Appellant had parted with control and ownership of the accident motor vehicle reg. no. KAY 518R for over 8 years.7. The learned magistrate erred in law and in fact by failing to find that the 2nd Respondent was the beneficial owner who was in control of the motor vehicle reg. no KAY 518R as on 25th November 2015 and indeed an interlocutory judgment had been entered against the 2nd Respondent before the full trial hearing.8. The learned magistrate erred in law and in fact by failing to find that the Appellant could not be vicariously liable for the negligence of the 2nd Respondent whatsoever as he was not its driver, servant or employee. The Appellant’s witness gave evidence that the Appellant is based at Mombasa Moi Avenue while 2nd Respondent was based at Nairobi and they had no employer-employee relationship9. The learned magistrate erred in law and in fact by failing to take into account that the issue of liability in the circumstance was decided in Nrb Hccc 105 Of 1999 William Waweru Wanyoike V Dinesh M. Achar & Anor which was produced by the Appellant in the instant suit and in several suits. The superior court ruled that it is not right and fair to hold a defendant liable for the plaintiff’s injuries which were sustained when the defendant had already parted with possession and control of the accident motor vehicles as was the case in the suit. The said authority was binding on the subordinate court.10. The learned magistrate erred in law and in fact by wrongly finding that the appellant did not call a third party proceedings against her yet there was no claim that the third party was in control of the accident motor vehicle as on November 28, 2015. Further there was no dispute over the authenticity of the sale agreement.11. The learned magistrate neither pleaded during the full trial hearing of both the appellant’s and the 1st respondent’s witness nor saw the demeanor of the witnesses during the examination-in-chief, the cross examination and re-examination. Hence she wrote a judgment over a case she did not understand given the trial magistrate was Ms. I. Gichobi who went maternity leave and then went on transfer but she should have written the judgment as she was conversant with the issues which came up in trial before her and not D.A Ocharo SRM who wrote and delivered the judgment.” (sic)

4. The appeal was canvassed by way of written submissions. Counsel for the Appellant compressed the lengthy grounds of appeal into one composite issue, namely, the ownership of motor vehicle KAY 518R at the time of the alleged accident and vicarious liability. Citing Nancy Ayemba Ngaira v Abdi Ali [2010] eKLR and William Waweru Wanyoike v Dinesh M. Achar &anor [2001] eKLR the appellant argued the learned magistrate erred in finding that the Appellant was liable because it was the registered owner of the accident motor vehicle KAY 518R rather than the 2nd respondent who was the beneficial owner in actual control or possession of the vehicle. That the appellant demonstrated that it had parted with possession and use of the accident motor vehicle vide a sale agreement and delivery note both dated July 31, 2017 duly signed by the purchaser Hulda W. Mwasela. The appellant reiterated that the 2nd respondent was not its employee, servant or driver of the said accident motor vehicle and for the benefit of the appellant, and as such, the appellant could not be held vicariously liable for the negligence of a stranger.

5. The appellant asserted that it had discharged its evidentiary burden that it was neither in actual control, actual possession of the accident vehicle and nor was the 2nd respondent its employee or servant or driver as of the date of the accident on 28th November 2015. In conclusion the court was urged to set aside the judgment on the lower court and allow the appeal as prayed.

6. On his part, counsel for the 1st respondent defended the trial court’s findings. While citing the provisions of section 107(1) of the Evidence Act it was asserted that he who alleges must prove. It was further contended that the appellant failed to discharge its burden of proof on ownership, having failed to tender any transfer documents, call as a witness or institute third party proceedings against the alleged purchaser to prove that it had indeed parted with possession of the suit motor vehicle. Relying on the Ugandan case ofSheikh Ali Ssenyonga & 7 others v Shaikh Hussein Rajab Kakooza and 6othersSCCA No. 9 of 1990 counsel asserted that the 1st respondent ably proved the appellant as real owner of the motor vehicle KAY 518R by way of the copy of records from the Kenya Revenue Authority and that any evidence to the contrary by the Appellant was hearsay. The court was urged to uphold the trial court’s findings on liability.

7. Concerning damage, s counsel cited the decision in Machira T/A Machira & Co. Advocates v East African Standard (No. 2)[2002] KLR 63 in arguing that the 1st respondent specifically established the claim by production of receipts and was therefore entitled to compensation. In conclusion counsel sought that the appeal be dismissed with costs.

8. The 2nd respondent did not participate in the proceedings before the lower court or before this court.

9. The court has considered the record of appeal, the pleadings and original record of the proceedings as well as the submissions by the respective parties. This is a first appeal. The Court of Appeal for East Africa set out the duty of the first appellate court in Selle v Associated Motor Boat Co. [1968] EA 123 in the following terms: -“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.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.”

10. An appellate court will not ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or it is demonstrated that the court below acted on wrong principles in arriving at the finding it did. See Ephantus Mwangi & Another vs Duncan Mwangi Wambugu[1982 – 1988] IKAR 278.

11. Upon review of the memorandum of appeal and submissions by the respective parties before this court, it is the court’s view the appeal turns on the question whether the trial court’s finding that the appellant was vicariously liable for the accident was justified. Pertinent to the foregoing are the pleadings, which formed the basis of the parties’ respective cases before the trial court. Hence a review thereof is apposite before dealing with evidentiary matters. In Wareham T/a A.f. Wareham & 2OThers V Kenya Post Office Savings Bank [2004] 2 KLR 91, the Court of Appeal stated in this regard that: -“We have carefully considered the judgment of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or Court on the basis of those pleadings pursuant to the provisions of Order XIV of the Civil Procedure Rules. And the burden of proof is on the Plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail.” (Emphasis added).

12. The 1st respondent by his plaint averred at paragraphs 5, 6, 7 and 8 that:“5. The 1st defendant was at all material times the lawful owner of motor vehicle registration number KAY 518R.6. The 2nd defendant was at all material times the driver of the motor vehicle registration number KAY 518R.7. On November 28, 2015at around 10:40pm along Limuru Road the 2nd defendant by himself and/or his authorized driver, agent and/or servant managed and/or controlled motor vehicle registration number KAY 518R so negligently and recklessly that he and/or his agent caused the said motor vehicle to lose control and collide with the Plaintiff’s motor vehicle registration number KAL 968M causing it to sustain major damages.8. The 1st defendant is vicariously liable to the plaintiff in respect of the said damages arising from the accident herein.Particulars of the 2nd defendant’s negligencea)Failing to look out for other road users while driving.b)Failing to stop, swerve, brake or in any other way maneuvers the said motor vehicle under his control so as to avoid the said accident.c)Driving without due care and attention.d)Failing to keep proper look out.e)Failing to exercise good judgment while driving.f)Causing the accident.” (Sic)

13. As earlier captured herein the appellant filed a statement of defence denying the key averments in the plaint and in particular denying that it was vicariously liable for the acts of the 2nd respondent and or that it was the lawful owner of motor vehicle KAY 518R by stating at paragraphs 3, 4, 5 and 6 that:“3. The 1st defendant denies the contents of paragraph 4, 5, 6, 7 & 8 of the plaint and states it was not vicariously liable for the alleged negligence of the alleged 2nd Defendant who was not its driver, servant and or agent at the material time whatsoever and puts the Plaintiff to strict proof.4. The 1st defendant states the plaintiff’s rightful cause of action is against the 2nd defendant otherwise the 1st defendant is/was only an importer and financier of the motor vehicle reg. no. KAY 518R which the 1st defendant sold to Hulda W. Mwasela vide sale agreement executed on July 31, 20075. The 1st defendant denies the contents of paragraph 9 & 10 of the Plaint as to the particulars of negligence and special damages as pleaded as it was not vicariously liable for any damages, negligence or breach of duty whatsoever as it has been wrongly enjoined in these proceedings and puts the plaintiff to strict proof.6. Further under clause 6 of the sale agreement executed on July 31, 2007it was the sole responsibility of the buyer to be liable for all injuries or damages should the vehicle be involved in an accident notwithstanding the fact that the motor vehicle has not been formally transferred to buyer’s name and in law the motor vehicle was being used by the 2nd defendant as employers/buyers and/by their driver/agent or servant for the benefit of the said buyers and not the 1st defendant hence the 1st defendants cannot be liable for the plaintiffs damages whatsoever.” (sic)

14. The trial court after restating and examining the evidence on record in its judgment stated concerning liability that:“The second defendant did not enter appearance or file defence to challenge the plaintiff’s evidence despite due service being effected on October 5, 2016by Willis Agayi a certified court process server and interlocutory judgment was entered against him and therefore find him 100% liable…………..That leads me to the issue of liability of the part of the 1st defendant.The 1st defendant claims that he entered into a sale agreement with one Hulda and even produces a sale agreement between his company and Hulda W. Mwasera for motor vehicle Toyota Corrolla KAY 518R dated July 31, 2007 signed by both parties and stamped, but does not institute a third party proceedings against the said Hulda…The defendant’s in this case produced a sale agreement entered between the company and a third party by the name of Hulda, but does not call her to produce witness on the said sale agreement or institute third party proceedings against her.Basing on this fact I find the 1st defendant vicariously liable for the accident, for failing to prove that Hulda is the true owner of the motor vehicle by instituting a third party proceedings against her and therefore, he is still the owner of the said motor vehicle.” (sic).

15. As rightly argued by counsel for the appellant, the applicable law as to the burden of proof is found in section 107, 108 and 109 of the Evidence Act. The duty of proving the averments contained in the plaint lay squarely on the 1st respondent. In Karugi &anotherv.Kabiya & 3others (1987) KLR 347 the Court of Appeal stated that:“[T]he burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof. We would therefore venture to suggest that before the trial court can conclude that the plaintiff’s case is not controverted or is proved on a balance of probabilities by reason of the defendants’ failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant…--. The plaintiff must adduce evidence which, in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities it proves the claim.” (Emphasis added)

16. The mere occurrence, of an accident, without more, cannot be proof of negligence. As the Court of Appeal stated in Eastern Produce (K) Ltd Christopher Atiado Osiro [2006] eKLR, the onus of proof lies upon him who alleges and where negligence is alleged, some form of negligence must be proved against the defendant. The court in that case cited the famous decision of Kiema Mutuku V. Kenya Cargo Hauling Services Ltd [1991] 2KAR 258 where the Court of Appeal, reiterating the foregoing stated that:“There is, as yet no liability without fault in the legal system in Kenya and a plaintiff must prove some negligence against the defendant where the claim is based on negligence.”

17. The 1st respondent’s claim as against the appellant and 2nd respondent was founded on negligence. Particularly, from the pleadings before the trial court the 1st respondent held the appellant vicariously liable for the negligence of the 2nd respondent who was the alleged driver of motor vehicle KAY 518R. Evidently, from the 1st Respondent’s witness statement adopted as his evidence in chief, and testimony before the trial court the 1st respondent did not witness the accident whereas no tangible explanation was proffered as to how the accident occurred. His evidence was to the effect that on 28th November 2015 at around 10:40 p.m. his authorized driver, servant and/or agent was driving along Limuru Road when and accident occurred involving his motor vehicle KAL 968M and motor vehicle KAY 518R.

18. Further, the 1st respondent did not call his driver or any eyewitness to accident to testify on the 2nd respondent’s negligence that led to the occurrence of the accident. The 2nd respondent on his part did not participate in the proceedings before the trial court as earlier observed. The trial court appeared to accept the 1st respondent’s evidence wholesale and proceeded to make a finding on liability against the 2nd respondent and to hold the appellant liable for the actions of 2nd respondent. In my considered view, beyond confirming occurrence of the accident, the 1st respondent’s evidence did not contain admissible and credible evidence as to how the accident occurred and therefore proof of negligence.

19. Indeed, without evidence of negligence, it is difficult to see how vicarious liability could attach to the appellant even if a servant/master relationship had been established between the appellant and the 2nd respondent. The court having also reviewed the evidence of the 1st respondent notes the absence of the loss assessor’s evidence in proof of damage to the vehicle and therefore loss to the 1st respondent. The burden of proof lay squarely with the 1st respondent to prove his claim. The evidence led by him failed to rise to the standard of balance of probabilities on the question of negligence against the 2nd respondent and loss for which the appellant could then be held vicariously liable. Or stated another way, under section 107 of the Evidence Act, the burden of proof lay with the 1st Respondent and if his evidence did not support the facts pleaded, he failed as the party with the burden of proof. See the case of Wareham t/a A.F. Wareham (supra). The trial court misdirected itself in proceeding to find the 2nd respondent wholly liable notwithstanding the interlocutory judgment entered.

20. Having found that negligence had not been proved against the 2nd respondent or loss proved, and that no vicarious liability could therefore attach to the appellant, the court will now consider two related further reasons why such liability could not attach in this instance. The reasons relate to the disputed ownership of motor vehicle KAY 518R and the relationship between the appellant and 2nd respondent. Salmond on Torts, 1st Ed. Pg 83 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. It is deemed to be so done if it is either (a) a wrongful act authorized by the master, or (b) a wrongful and unauthorized mode of doing some act authorized by the master.”

21. The Court of Appeal Issa Transporters limited v Tsama (Civil Appeal 107 of 2019) [2021] KECA 296 (KLR) while citing with approval the decision in Joseph Cosmas Khayigila v Gigi & Co. Ltd &another Civil Appeal No. 119 of 1986 wherein the test for establishing vicarious liability as follows:“In order to fix liability on the owner of a car for the negligence of the driver, it was necessary to show either that the driver was the owner’s servant or that at the material time the driver was acting on the owner’s behalf as his agent. To establish the existence of the agency relationship, it was necessary to show that the driver was using the car at the owner’s request, express or implied or on his instructions and was doing so in performance of the task or duty thereby delegated to him by the owner.”

22. Similarly in Equator Distributors v Joel Muriu & 3 others [2018] eKLR the same court cited with approval the dicta in Anyanzwa & 2others vs. Luigi De Casper &another[1981] KLR 10 where it was held that; “vicarious liability depends not on ownership but on the delegation of tasks or duty.”. The 1st respondent pleaded, that the appellant was the “lawful owner” of the vehicle KAY 518R and produced records of the registrar of motor vehicles to prove that the appellant was the registered owner of the vehicle. The appellant had traversed the averment relating to ownership of the vehicle and denied that the 2nd respondent was its agent or driver. The appellant pleaded that it had sold the vehicle in July 2007 to one Hulda W. Mwasela and referred to a sale agreement later produced in court.

23. At the hearing the 1st respondent did not tender any evidence tending to create a nexus between the appellant and the 2nd respondent, whether based on agency or on a master/servant relationship. The 1st respondent produced a copy of records as (P. Exh.2) indicating therein that the registered owner of motor vehicle KAY 518R was the Appellant. The Police Abstract which was produced as (P. Exh.1) at paragraph 1 indicated that “KAY 518R Toyota 110 Owner Erickson Mbuthia”. The appellant on its part produced a sale agreement dated 31st July 2007 for motor vehicle KAY 518R and delivery note as (D. Exh.2). On the face of it, the sale agreement between the Appellant and one Hulda W. Mwesela. Clause 6 of the said agreement states that:“6. Should the motor vehicle be involved in an accident or stolen, burned etc, it shall be the sole responsibility of the buyer, notwithstanding the fact that the motor vehicle has not been formally transferred into her/his name”

24. Section 8 of the Traffic Act provides; -“The person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle.”

25. It is long settled that a copy of records is only prima facie evidence of ownership. The appellant successfully rebutted the 1st respondent’s evidence of ownership via the copy of records and discharged its evidential burden by proving that as of the date of occurrence of the accident, it had sold motor vehicle KAY 518R to one Hulda W Mwesela. The Court of Appeal in Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] eKLR addressed the provisions of section 8 of the Traffic Act and the issue of ownership of a motor vehicle stated that:“It is trite law that the ownership of a motor-vehicle is to be proved by the registration of a person as the owner of the motor-vehicle, unless proved otherwise….This section has been interpreted to mean that the registration of the motor-vehicle is not conclusive proof of ownership. In the case of Osapil v. Kaddy [2000] 1 EALA 187 the Court of Appeal of Uganda held that a registration card or logbook was only prima-facie evidence of title to a motor vehicle. The person in whose name the vehicle was registered was presumed to be the owner thereof unless proved otherwise.This Court adopted the interpretation above in the case of Securicor Kenya Ltd v Kyumba Holdings Civil Appeal No 73 of 2002 (Tunoi, O’Kubasu’ Deverell JJ. A) and held that;“Our holding finds support in the decision in Osapil v Kaddy [2000] 1 EALA 187 in which it was held by the Court of Appeal of Uganda that a registration card or logbook was only prima facie evidence of title to a motor vehicle and the person whose name the vehicle was registered was presumed to be the owner thereof unless proved otherwise. The appellant had, indeed, proved otherwise.”

26. In Jared Magwaro Bundi &another v Primarosa Flowers Limited[2018] eKLR, the Court of Appeal reviewed previous decisions on beneficiary ownership of a motor vehicle before holding held the respondent therein liable based on possessory ownership and usage of the accident vehicle. In reviewing past decisions on the matter, the court stated inter alia that: -“It was therefore held in Muhambi Koja (supra) that section 8 of the Traffic Act recognizes registration book or the Registrar’s extract of the record as prima facie evidence of title to a vehicle and the persons in whose name the vehicle is registered is presumed to be the owner thereof unless the contrary is proved. The burden is discharged if, on a balance of probabilities, it is shown that as a matter of fact the vehicle had been transferred but not yet registered, to a de facto owner, a beneficial owner, or a possessory owner. Such an owner though not registered for practical purposes may be more relevant than that in whose name the vehicle is registered.The position taken by the court in Jael Muga Opija (supra) and Mohamed Koja (supra) appears to us to accord with modern thinking and jurisprudence where the law is encouraging courts to interpret the law governed more by substance than the technical chains of form, the latter which does not ordinarily look at the justice of a case …”See also Nancy Ayemba Ngaira v Abdi Ali (supra).

27. Applying the above precedents to the evidence presented before the lower court, the inescapable conclusion is that as of November 28, 2015 when the alleged accident occurred, the appellant had no legal, beneficial, or equitable interest in the motor vehicle KAY 518R and further, that paragraph 6 of the sale agreement immunized the Appellant from any liability arising from the said motor vehicle after the sale. The appellant’s failure to institute 3rd party proceedings against the purchaser in this instance was neither here nor there. Afterall, the 1st respondent having had early notice of the motor vehicle purchaser Hulda W. Mwesela through the appellant’s pleadings and filed evidential material could also have joined her as a defendant.

28. For all the foregoing reasons, the findings and judgment of the lower court cannot stand. The appeal is allowed, and the judgment of the lower court is hereby set aside. The court substitutes therefor an order dismissing with costs the 1st respondent’s suit against the Appellant in its entirety.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 7TH DAY OF JUNE 2022. C.MEOLIJUDGEIn the presence of:For the Appellant: Mr Gitau MwaraFor the 1st Respondent: Mr. MuhuniC/A: Carol