https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7662

Darson Trading Ltd v Njoroge & 2 others (Civil Appeal 1505 of 2024) [2026] KEHC 7662 (KLR) (Civ) (4 June 2026) (Judgment) Neutral citation: [2026] KEHC 7662 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal 1505 of 2024 BW Murunga, J June 4, 2026 Between Darson Trading Limited Appellant and Jane Muthoni Njoroge 1st Respondent Evans Omariba Momanyi 2nd Respondent Uddin Mijbah 3rd Respondent (Being an Appeal from the Ruling of Hon. D.O. Mbeja Principal Magistrate delivered on 16th December 2024 in Civil Case Number E3661 of 2022 at the Milimani Chief Magistrate’s Court) Judgment 1.The central issue for determination in this appeal is the ownership of the subject motor vehicle. 2.The 1st Respondent suffered injuries as a result of a road traffic accident involving herself and motor vehicle registration number KDE 115M. The said road traffic accident occurred on or about 23rd April 2022 at about 3.00pm when the 1st Respondent was crossing the road along Waiyaki Way. 3.She sustained various injuries including cut wounds on the occipital region, pain and tenderness on the neck due to blunt force trauma injuries, bruises on the left side of the chest, fractures on the left ribs , bruises on the left forearm, fractures on both legs and a fracture of the the pelvis. 4.She filed a case in the Magistrates’ court by a Plaint dated 5th July 2022 in which she sued the Appellant as 1st Defendant and the 2nd Respondent as 2nd Defendant. 5.On why she sued the two Defendants, the Police Abstract issued from the Traffic Office at Kabete Police Station and dated 7th May 2022 indicated the 2nd Respondent as one of the witnesses to the accident implying that he witnessed the accident as the driver of the motor vehicle registration number KDE 115M. 6.The other person sued was the appellant who was sued on the basis that it was recorded as the registered owner in the Motor Vehicle Copy of Records issued by the National Transport and Safety Authority (abbreviated and popularly known as NTSA). Evidence at trial showed that the NTSA search was obtained upon payment of the prescribed fee of Kshs 500 via invoice number INV-009091192. This confirmation by the NTSA is what gave the 1st Respondent the courage to state boldly in the Plaint at paragraph 4 that:At all times relevant to this suit [CMCC E3661 of 2022] the 1st Defendant was the registered owner of motor vehicle registration number KDE 115M. 7.The 1st Defendant who is now the Appellant was quick to deny the averment above that they were the registered owner of motor vehicle registration number KDE 115E and put the Plaintiff to strict proof of this fact. 8.The Plaintiff now 1st Respondent had also added an extra allegation in the averments when she mentioned in the same Plaint at paragraph 5 that there was also a beneficial owner of the motor vehicle. For effect, the paragraph read:At all time relevant to this suit [CMCC E3661 of 2022] the 2nd Defendant was the beneficial owner of motor vehicle registration number KDE 115M. 9.Again, the 1st Defendant denied the contents of paragraph 5 of the Plaint in its entirety and specifically denied knowledge that the 2nd Defendant in the suit was the beneficial owner of the motor vehicle registration number KDE 115M. The 1st Defendant put the Plaintiff to strict proof of this fact. 10.Despite the general denial, the 1st Defendant went ahead to then state at paragraph 8 of the defence as follows:Without prejudice to the foregoing, the 1st defendant avers that it sold and surrendered possession of the motor vehicle regsitration number KDE 115M to Mijbah Uddin via a Motor Vehicle Hire Purchase Agremement.This averment was repeated at paragraph 15 of the defence when the 1st Defendant was denying liability. 11.To make good their postulations, the 1st Defendant then filed a Chamber Summons application dated 23rd September 2022 in which it sought leave to serve a Third Party Notice on the said Mijbah Uddin, now 3rd Respondent in this Appeal. 12.Mijbah Uddin entered appearance on 23rd February 2024 and also filed a Third Party Defence in which they denied the averments in the Third Party Notice and also sought to blame the Plaintiff for the occurrence of the accident either solely and or through contributory negligence. 13.The matter proceeded for hearing on 17th July 2024 when the Plaintiff now 1st Respondent testified and was cross examined. It is recorded in the decision by the learned Magistrate that the Defendants did not adduce any evidence to challenge the evidence of the Plaintiff. This is because initially the Plaintiff was to call the doctor and the Police but when the matter was adjourned to 28th August 2024, it seemed to have turned into a defence hearing instead. The Supplementary Record of Appeal is not quite clear on what transpired and whether the Plaintiff closed her case as this is not clearly reflected in the proceedings. 14.Be that as it may, it is noted that orders were issued on the 28th August 2024 for the parties to file submissions after the Appellant failed to call any witnesses. 15.The Appellant then approached the Court with an application seeking to reinstate the Defence case. It was indicated by the Appellant that they had every intention of defending themselves in the matter but Counsel instructed to appear on their behalf was on the stated day of the listed hearing engaged before another judicial officer Honourable John Paul Nandi when this matter was called out in the trial court. 16.This application was compromised by consent of the parties and the Defence hearing set for 20th November 2024 when once again the Appellant failed to call witnesses and the case was closed with written submissions ordered and a judgment date set for 16th December 2024. 17.The trial court in its Judgment found against the Appellant and awarded a sum of Kshs. 2,000,000 to the 1st Respondent as general damages and in addition also awarded special damages assessed at Kshs. 66,690. 18.Aggrieved by the decision, the Appellant filed a Memorandum of Appeal of seventeen Grounds which amongst others adumbrated the following:a.The Learned Magistrate erred in law and in fact in finding the Appellant to be the owner of the accident motor vehicle on the ground that the Appellant was the registered owner of the same, without considering that possessory ownership and beneficial ownership had passed to the third party.b.The Learned Magistrate erred in law and in fact in finding the Appellant to be the owner of the accident motor vehicle on the ground that the Appellant was the registered owner of the same, without considering the compelling evidence, from the Police Abstract, that possessory ownership and beneficial ownership had passed to Transline Sacco, who were conveniently not made party to this suit.c.The Learned Magistrate erred in law and in fact in finding the 1st Respondent had proved her case against the Appellant, without considering there was no connection established between the person in possession of the accident motor vehicle on the day of the accident and the Appellant.d.The Learned Magistrate erred in law and in fact in finding the Appellant to be the insured of the accident motor vehicle without considering the compelling evidence that possessory ownership and beneficial ownership had passed to Transline Sacco, who as per the police abstract, was the insured thereof.e.The Learned Magistrate erred in law and in fact in disregarding the assertion that the subject motor vehicle had been sold to the third party, and that the Appellant was no longer in ownership and control of the same as at the time of the accident in question.f.The Learned Magistrate erred in law and in fact in disregarding the assertion that the third party was to indemnify the Appellant in case of any liability or claim with respect to Motor Vehicle Registration Number KDE 115M whilst the same was in the third party's possession.g.The Learned Magistrate erred in law and in fact in preparing a judgment without considering that a third party had been made a party to this case.h.The Learned Magistrate erred in law and in fact in failing to consider that it is trite law that despite a person being the registered owner of a motor vehicle, there may exist beneficial and possessory ownership of the same which may be more relevant than the registration thereof.i.The Learned Magistrate erred in law arid in fact in failing to consider that it was Transline Sacco which was the insured of the subject motor vehicle as at the time of the accident in question.j.The Learned Magistrate erred in law and in fact in failing to consider that other than the Motor Vehicle Copy of Search, a Police Abstract can by dint of Section 8 of the Traffic Act, provide sufficient proof of ownership of the accident motor vehicle.k.The Learned Magistrate erred in law and in fact in holding the Appellant 100% liable for an accident wherein it had sold the accident motor vehicle to the third party who did not present evidence to dispute this fact.l.The Learned Magistrate erred in law and in fact in failing to consider that the main concern of the court is to do justice to the parties.m.The Learned Magistrate erred in law and in fact in failing to consider that it is not the business of courts to re-write contracts between parties.n.The Learned Magistrate erred in law and in fact in disregarding the evidence that in civil matters liability trickles down to who actually caused an accident.o.The Learned Magistrate erred in law and in fact in disregarding the proof that nothing impeded that Court's right to exercise its discretion in this matter.p.The Learned magistrate erred in law and in fact by disregarding all the evidence including the Police Abstract, supporting its position that it had sold the subject motor vehicle as at the time of the accident in question.q.The Learned Magistrate erred in law and in fact in making a Judgment that is unfair, biased, unjust and an absurdity to the norms of equity and justice. 19.These seventeen grounds actually boil down to the issue asked at the beginning of this Judgment. Who owned the motor vehicle KDE 115M? This then also leads to the question of: On whom should liability be apportioned? 20.Ownership of a motor vehicle largely falls within three categories: legal ownership, beneficial ownership and possessory ownership. These three different categories were discussed in the case of Nancy Ayemba Ngaira –vs- Abdi Ali [2010] eKLR where it was held that;“In judicial practice, concepts have arisen to describe such alternative forms of ownership:actual ownership; beneficial ownership; possessory ownership.A person who enjoys any of such other categories of ownership, may for practical purposes, be much more relevant than the person whose name appears in the certificate of registration; and in the instant case at the trial level, it had been pleaded that there was such alternative kind of ownership. Indeed, the evidence adduced in the form of the Police Abstract, showed on a balance of probabilities, that 1st defendant was one of the owners of the matatu in question. The trial Court, therefore, had no legal basis for limiting ownership to 2nd defendant whose name was shown on the certificate of registration for the motor vehicle. The correct decision would have been to attach liability not just to 2nd defendant, but to both defendants.” 21.The Appellant has been shown to have been the legal registered owner of the motor vehicle. This is not in doubt as the company name appears on the Copy of Record issued by NTSA. 22.Legal ownership creates a nexus with the driver at the time of the accident, giving rise to the doctrine of vicarious liability, which renders employers liable for acts of their employees performed in the course of employment.In the case of Shighadi versus KPLC & Another [1988] KLR 682 it was held by Justice Bosire that :i.The owner of a vehicle is liable not only for the negligence of a driver, If that driver is his servant acting in the course of his employment, but also if the driver is his agent… with the owners consent, driving the car on the owners’ business or for the owners’ purposes.ii.….. the first defendant did not owe a duty of care to persons who, like the plaintiff, were carried in its vehicles as unauthorized passengers.iii.If the …. Act of giving the plaintiff a lift fell outside the scope of his employment, the absence of a notice on the vehicle dash board to the effect that unauthorized persons were not permitted in it would not, of itself without more, bring the act of lifting the plaintiff within the scope of his employment.iv.The first defendant was therefore not liable for the injuries sustained by the appellant in the accident. 23.One therefore begins to understand why the appellant insists that there is no link between them and the driver of the motor vehicle. In fact, the Appellant went as far as bringing in the driver’s employer who happens to be the one who was both in possession and also the beneficial owner of the motor vehicle. Not all beneficial owners are possessory owners, it must be stated. 24.To prove the nexus between the 3rd t Respondent and the Appellant, the Apellant had from the onset stated in the Defence that that it sold and surrendered possession of the motor vehicle registration number KDE 115M to Mijbah Uddin via a Motor Vehicle Hire Purchase Agremement. So, the Appellant has claimed that both possesory ownership and beneficial ownership lay with the 3rd Respondent. This is the reason the 3rd Respondent was added to the suit at the trial court as a third party. 25.As a third party, the 3rd Respondent played its role and even attempted to blame the 1st Respondent for contributing to the accident. However, even as the third party is introduced, the question that lingers is what business the 1st Respondent has to do with the relationship between the Appellant and the 3rd Respondent. 26.It would be utterly preposterous to expect that every one who encounters an incident on the road such as a road traffic accident is then turned into some sort of sleuth to unearth what arrangemets there are between the persons who are legally registered as owners of the vehicles and those that they have entered into financial dealings with including leasing, hire purchasing or any other arrangements. 27.There ought to be some application of what may loosely be called the indoor management rule in such circumstances such that the burden falls upon the legal owner to appear in court and to explain the circumstances sorrounding the ownership and use of the motor vehicle and to demonstrate why liability should not attach to them. 28.That is the path that the Appellant took by adding the third party. The third party is supposed to provide indemnity to the Appellant. Whether or not the arrangement they have is one of a hire purchase arrangement, and whether of not a romalpa clause has been infused, their arrangements would be outside the mandatory obligations of the Plaintiff to prove. 29.It is very well that the Appellant is clarifying these things to the Appellate court but the Appellate court is also aware that the Appellant did not lead the specific evidence at the hearing despite being given two chances so to do which led to the case being closed, reopened and closed again as the opportunity to testify, clarify and give evidence was spurned. 30.Without venturing into speculation, it is reasonable to state had evidence been led on these very critical aspects of ownership, the Learned Magistrate may have arrived at a different conclusion. 31.What has ended up happening is that the Appellant is simply pushing the blame to the 1st Respondent when there is a door that had been opened to him to exercise his right as was appropriate with the third-party joinder. In fact, in the submissions that have been filed in this Appeal by the Appellant at the fourth page the second last paragraph, the Appellant states that there is a contractual obligation on the 3rd Respondent to indemnify the Appellant in case of liability or claim or misdemeanour in respect if the motor vehicle registration number KDE115M. 32.The 1st Respondent has discharged her role by doing what is within her mandate which is to check who is the legal owner of the vehicle. She cannot be expected to go further and examine the arrangements between the legal owner and other parties. It is for the legal owner to explain itself. Yet given the chance at the hearing the legal owner did not explain himself but absented themselves for the defence hearing. Some wars may be won by retreating but absenting oneself from proceedings seems to be a strategy that may fail, if at all it is a strategy or for whatever reasons. 33.The trial Court therefore correctly considered the evidence that was on record at the time and the proceedings that had taken place before the Court before the judgment date. 34.The learned Magistrate was within proper legal reasoning in holding that the liability fell upon the Appellant. The Appellant was free to take up the indemnification that had been commenced. Orders 35.The Appellate Court dismisses the Appeal, and upholds the Judgment of the Hon. D.O. Mbeja made on 16th December 2024 in its entirety. 36.The Appellant shall bear the costs of this Appeal. DATED AND DELIVERED AT NAIROBI THIS 4TH DAY OF JUNE 2026.BENARD MURUNGA WAFULAJUDGEDelivered on virtual platform in the presence ofOsoro for the AppellantNyabanda h/b for Gombo. for the 1st RespondentKevin Babu - Court Assistant