Diamond Shipping Services Ltd v Kencott CFs & 3 others (Civil Appeal 198 of 2023) [2026] KEHC 8527 (KLR) (9 June 2026) (Judgment)

Diamond Shipping Services Ltd v Kencott CFs & 3 others (Civil Appeal 198 of 2023) [2026] KEHC 8527 (KLR) (9 June 2026) (Judgment) Neutral citation: [2026] KEHC 8527 (KLR) Republic of Kenya In the High Court at Mombasa Civil Appeal 198 of 2023 PK Rotich, J June 9, 2026 Between Diamond Shipping Services Limited Appellant and Kencott CFs 1st Respondent Kenya Revenue Authority 2nd Respondent Mark Bowen 3rd Respondent First Forty Importers and Exporters Company Limited 4th Respondent (Being an appeal from the Judgement and Order of the Chief Magistrate Court at Mombasa (Hon.J.B.Kalo CM) delivered on 7th July 2023 in CMCC No. 713 of 2017) Judgment 1.This appeal arose from the Judgement of Hon. J.B.Kalo (CM) delivered on 7th August,2023 in the Chief Magistrate Court in Mombasa in Civil Case No.713 of 2017 filed by the 4th respondent against the appellant and the 1st, 2nd and 3rd respondents. The suit emanated from a contract between the 4th respondent and one Trendy Information Co.Ltd through which the 4th respondent imported three pre-owned motor vehicles chassis numbers CHS NT31-1060223, CHS.ACA 38-5136852 and CHS NZ T 260-3055425. In his plaint the 4th respondent avered that upon the importation of the said vehicles in 2017 he was denied permission to collect the vehicles by reason that the appellant had lodged a different bill of lading on behalf of the 4th respondent thereby depriving the plaintiff ownership of the same, an act which the plaintiff deemed unlawful. 2.In its defence, the appellant stated that it is purely in shipping business as an agent and that the subject goods of the contract of carriage herein were represented by bill of lading No.XXX issued by Keihin Co. Limited to the 4th respondent on 27.11.2016 and which the appellant was not a party but an agent of the carriers. 3.On or about 29.3.2017, the appellant averred, it received a notification for amendment to the 4th respondent by the port of loading. The 4th respondent, however, on 3rd April,2017 approached the appellant’s office claiming the manifest correction was a forgery prompting it to inform the Kenya Revenue Authority (KRA)- the 2nd respondent to cancel the amendment process and restore the 4th respondent as the original consignee. 4.The 1st respondent on its part filed a defence and counterclaim. In its defence, the 1st respondent avered that it was an agent of the 2nd respondent and received the vehicles upon nomination by the consignee, the 4th respondent. The 1st respondent also avered that that it could only release the subject vehicles herein with authority of the 2nd respondent and upon payment of storage fees and demurrages which had at the filling of the counterclaim accumulated to Kshs.13, 583,667 and continue to accrue on daily basis. The 1st respondent made a similar claim against the appellant. 5.In his defence and counterclaim, the 3rd respondent admitted the 4th respondent was the original consignee of the subject motor vehicles herein consigned to it by Trendy Information Company Limited vide Bill of Lading No.XXX.Having agreed on the transaction and sale of the said motor vehicles, the 3rd respondent pointed out, the 4th respondent paid a deposit of the purchase price and the consignor shipped the subject motor vehicles to the Mombasa Port via Keihin Company Limited. 6.The 3th respondent, further, avered that the plaintiff breached the terms of the agreement of sale when it failed to make full payment of the balance of the purchase price prior to the goods arriving in Mombasa as agreed between the parties. To mitigate its losses, the 3rd respondent avered, the consignor exercised its right to sale as unpaid seller under Section 40 of the Sale of Goods Act and sold the suit vehicles to him through his agent Mr.Silas Kamau. 7.The 3rd respondent also avered that he paid a valuable consideration of USD 20,000 in full payment to the consignor through his agent Silas Mwangi Kamau. The suit properties, the 3rd respondent stated, were, therefore, validity transferred to him and he acquired good title as a bona fide purchaser against the original buyer, the 4th respondent and was issued the original Bill of Lading KMB-6Y3-0445 and all other necessary original documents which were in his possession. Additionally, the 3rd respondent avered that the appellant was aware that it was new consignee of the subject goods herein vide manifest issued by the appellant’s principal Keihin Limited, a fact admitted in its defence dated 6th May, 2019 8.PW1, Melekzadek Oduor, the 4th respondent’s Director, stated that before the 4th respondent could pay the balance of the purchase price, was informed by the appellant that one Moses Mwenda had presented the “original documents” and an affidavit stating that he was one of the directors of the plaintiff. The said Moses Mwenda, PW1 stated, also claimed the 4th respondent had sold the vehicles to 3rd respondent. The 4th respondent, PW1 stated, however stated, had 2 directors and Moses Mwenda was is not one of them. 9.PW1, further, stated that he visited the appellant and presented it the 4th respondent documents which included a CR 12, certificate of incorporation and KRA pin. Thereafter, PW1 stated, a representative of the appellant apologized and immediately made calls and sent emails to Customs to stop the amendments the were being undertaken as the affidavit sworn by Moses Mwendwa was a forgery. 10.DW1, Susan Wanjiru Ndirangu, an employee of the appellant stated that the manifest of the subject vehicles herein was cancelled by the Customs because the plaintiff requested based on the affidavit presented by Moses Mwenda Murungi. She, therefore, denied the appellant was negligent. 11.The witness reiterated that the 4th respondent was the original consignee of subject motor vehicle herein in the of the Bill of Lading issued by Keihin Limited on 27.11.2016.On or about, 29th March,2017 ,DW1 stated, the 1st appellant received a manifest correction from the port of loading and made the necessary changes with KRA. On 3.4.2017, it was, however, brought to the attention of the appellant by the 4th respondent’s Director that it had not instructed/or caused to be made a correction of the manifest and further, protested the documents supplied to the 2nd respondent were forgeries. The appellant, therefore, took steps to ensure cancellation of the amendment process with KRA and the manifest amendment was not completed. 12.DW1, further, stated the 4th respondent wrote to KRA to hold the amendment and copied the appellant. She, however, admitted that the appellant also wrote to KRA to hold the amendment as requested by the 4th respondent. The witness also admitted the appellant relied on documents presented to them by the 4th respondent to request KRA to cancel the amendment process despite its principal being Keihin Limited. The witness, further, admitted that she was not aware of the relationship between the 3rd respondent and Moses Mwendwa. 13.DW3, Wycliffe Musili, an employee of KRA working as Revenue Collector stated that on 29.3.2017 the appellant made a request to Customs on 27.3.2017 to amend the subject manifest herein. The request was, however, DW3, rejected since on 31.3.2017 the appellant wrote another letter asking Customs to reject the amendment based on an affidavit sworn by Moses Mwenda Murungi. The 2nd respondent, also received a letter from the 4th respondent, the DW1 stated, there were owners of the cargo. 14.DW4, Silas Mwangi Kamau, who was the 3rd respondent’s agent testified that on 14.2.2017 he received an email from Trendy Information Company offering to sell him the three subject motor vehicles herein which arrived in Mombasa on 23.12.2016 but which had not been paid by the person who bought them. Trendy Information Company Limited, DW4 stated, issued a letter of guarantee to the 3rd respondent and a manifest corrector to change the consignee from the 4th respondent to 3rd respondent. He denied knowledge of Moses Mwendwa. 15.The witness, further, noted that after interim orders were sought and obtained by the 4th resondent, the plaintiff the subject goods herein remained in the custody of the 2nd defendant and thereore demurrage and storage charges have accrued. 16.In his Judgement the trial magistrate found that the 4th respondent failed to prove its suit against the appellant and the 1st ,2nd and 3rd respondents and dismissed the 4th defendant claim with costs. The trial Court, however, found the 1st and 3rd respondent’s counterclaims had merit and entered Judgement in their favour against the appellant and 4th respondent follows:a.That the 3rd respondent is declared the legal owner of motor vehicles numbers CHS.NT 31-1060223, CHS.ACA 38-5136852 and CHS NZ TZ 60-30554925.b.The 4th respondent and appellant are held liable at the ratio of 50% to 50% for the sum of Kshs.13,583,667 as at 2.3.2021 until the date of collection of the vehicles. That the 3th defendant is at liberty to pay the same and collect the vehicles and the execute the same against the 4th respondent and appellant.c.The 4th responent and the 1st defendant shall bear the costs of the suit together with interest thereon from the date hereof for the 1st, 2nd and 3rd respondent at the ratio 50 % to 50%.d.No interest shall be payable on the sum of Kshs.13,583,667 nor any further demurrage that has accumulated from 3.2.2021 and shall continue to accumulate until the vehicle are collected by the 4th respondent. 17.Being dissatisfied with the ruling, the appellant preferred this appeal. The appeal is based on the appellant’s memorandum of appeal dated 25th September, 2022 which raises 14 grounds of appeal. The said grounds can be summarized as follow1.That the trial magistrate erred in law and fact by finding the appellant is 50% liable for the 1st Respondent Claim without assigning any or giving proper reason thereof.2.The 1st and 2nd Respondent had not disclosed any reasonable cause of action against the respondent or had they made any substantive reliefs against them.3.That the 1st and 3rd Respondent had not proved their allegations against the appellant and that factual evidential material before the trial magistrate support his holdings herein 18.The appellant submitted that it is trite that parties are bound by their pleadings and that any evidence led by any of the parties which does not support or is it at the averments in the pleadings, or which is at variance must be disregarded. In this regard, the appellant relied on the decision of the the Court of Appeal in Independent Electoral and Boundaries Commission & Another v Mule & 3 others [20141 KECA 890 (KLR) in which the Court quoted with approval the decision of the Malawi Supreme Court of Appeal in Malawi Railways ltd v Nyasulu [19981 MWSC 3. In the Malawian case the Court quoted from an article by Sir Jack Jacob entitled "The Present Importance of Pleadings." published in [19601 Current Legal problems, at p 174 where it was stated;“As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings. For the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The Court itself is as bound by the pleadings of the parties as they are themselves. 19.It is no part of the duty of the Court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the Court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover, in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice” 20.Fundamentally, the appellant submitted, this matter was a contest of the legal ownership of the subject motor vehicles herein between Fast Forty Importers and Exporters Limited, 4th respondent and Mark Bowen, the 3rd respondent. In this regard, the appellant submitted that the learned trial magistrate failed to take into account that Kencott CFS, the 1st respondent to whom the storage charges are payable, pleaded that the storage charges are payable by the owner of the motor vehicles as is the custom in the shipping industry. 21.The appellant also submitted that, as an agent, it owed a fiduciary duty to its Principal Keihin Limited, the carrier to act with utmost good faith and due care in protecting the principal’s interests. This duty, the appellant submitted, extended to ensure that all steps undertaken in relation to the manifest correction process were lawful, proper, and free from any potential exposure to fraud or liability. On this point, the respondent relied on the case of Pioneer Holdings (Africa) Ltd v Francis Thuo and Partners Ltd & 2 others [20191 KECA 711 (KLR) in which the Court held:"Undoubtedly, an agent has duties towards the principal that include the duty to carry out the principal's instructions; the duty to exercise care and skill (and in that regard the agent must exhibit such a degree of skill and diligence as appropriate to the performance of his duties that he has accepted); the duty of loyalty; fiduciary duties including but not limited to duties to account and to avoid conflicts of interest. 22.The appellant’s witness, Susan Wanjiku Ndirangu, the appellant also pointed out, testified that the appellant amended the manifest of the subject goods herein to reflect the 3rd respondent as the new consignee as directed by its principal.On 3rd April 2017, the appellant pointed out, the 4th respondent, however, informed the appellant that it had not consented to the aforesaid manifest correction herein and further alleged that the documents submitted to Commissioner of Custom by 4th respondent, including the PIN certificate and the affidavit sworn by one Moses Mwendwa Murungi were forgeries, as the said Moses Mwendwa Murungi was not its director. It also availed its CR12 confirming that the said Moses Mwendwa Murungi was not among its directors. 23.Faced with the serious allegations of fraud raised by the 4th respondent, the appellant submitted, it acted in good faith by writing to the Commissioner of Customs requesting that the manifest amendment be withheld pending further engagement with its principal.The learned trial magistrate, the appellant submitted, therefore,erred in law and fact by holding that Diamond Shipping exacerbated the accrual of the demurrages charges by delaying the amendment of the manifest whereas in was in fact, the 1st respondent who did so by stating that its PIN Certificate and Affidavit of Moses Mwendwa Murungi were forgeries. The appellant as an agent, the respondent submitted, has no obligation to pay storage charges as it has no proprietary interest in the subject motor vvehicles herein as conceded by the 4th respondent. 24.By entering judgment in favour of Kencott CFS and Commissioner of Customs and condemning appellant to pay 50% of the accrued storage and demurrage charges at Kshs. 13,583,667.00 as at 2nd March 2021, the appellant further pointed out, the learned trial magistrate erred in law and in fact by failing to take into account the evidence adduced during trial that the demurrage and storage charges, begun accruing four (4) days after the motor vehicles had been imported in Kenya being the 26th December 2016 and three (3) months before the 3rd respondent bought the motor vehicles from the Shipper. This position is supported by the testimony of one Isaac Cherono, the Human Resource Manager of Kencott CFS, who testified on 24th August 2024, that subject motor Motor Vehicles were lying at Kencott CFS's premises for 53 days since the 4th respondent had failed to fully pay the value of the Motor Vehicles. 25.In making the above submissions the appellant relied on the case of Power Solutions Limited -vs- CMA CGM Kenya Limited & 2 Others [2020]1 eKLR the Court held“……the bigger duty was upon the plaintiff as the consignee and the person with title to have the good cleared with speed to avoid possible bottlenecks and resultant but avoidable port charges like those occasioned by delayed removal, I therefore draw the conclusion that the delay leading to the disputed port charges was fully contributed to by the plaintiff and that any lack of diligence by the 2nd defendant had no tangible contribution thereto. I would therefore assign the liability for any injury and loss resulting from that delay squarely upon the plaintiff." 26.The appellant, further, submitted that it is clearly evident that the Learned trial Magistrate misconstrued the facts herein and arrived at the wrong decision when he held the appellant caused the delay despite the fact that it was actually the 4th respondent that obtained an Order to restrain all parties from releasing the subject motor vehicles herein and the said Order remained until the determination of the main suit by the Trial Court. 27.The appellant also submitted that the learned trial magistrate did not give a plausible explanation as to why he held Diamond Shipping 50% liable to pay the accrued demurrage charges when the was acting within its mandate in protecting the Carrier,s interest.. 28.In its submission, the 1st respondent, agreed that the evidence on record herein indicates that the appellant vide a manifest corrector dated 7.3.2017 and received by the appellant on 29.3.2017 was notified by its pprincipal that the bill of landing changed names from the 4th rrespondent to the 3rd rrespondent. The 1st respondent also pointed out ,the appellant’s witness admitted to having taken steps to have the amendment process with the KRA cancelled, citing discrepancy in the paperwork from the 4th Defendant. 29.The 2nd rrespondent also admitted to having received a notification from the aappellant on 29.03.2017 but the said application for amendment was rejected. The effect of this, the 2nd respondent pointed, was that the 4th rrespondent could not collect the goods as it did not have the compliant declaration for physical verification. Further, the 3rd Respondent could also not have colleted the goods because the manifest correction application was rejected 30.On his part, the 3rd respondent submitted that evidence on record shows that the appellant received direct and unambiguous instructions from its principal, to amend the consignee’s name to that of the 4th respondent and to that of the 3rd respondent.These instructions, the 3rd respondent pointed out, came through corrected manifest dated 6th March, 2017 given by the shipper Trendy Information Limited and a letter dated 5th April, 2017 addressed to the Customs Department, all which were tendered in evidence before the trial Court. 31.The appellant’s own witness Susan Ndirangu, the 3rd respondent pointed out, admitted receiving the above documents and initiating the amendment process by writing to the 2nd respondent and on 29th March,2017 to effect change in the KRA system. The same witness, the 3rd respondent pointed out, later instructed the 2nd respondent to cancel the amendment process based solely on two affidavits shown by Moses Mwendwa and which affidavits were disowned by the 3rd respondent. The 3rd respondent also argued that the appellant was negligent because, other than acting contrary to its principal’s instructions. the appellant failed to discharge its duty as agent. The 3rd respondent, further, submitted that due to its action the appellant was personally liable to pay demurrage charges. 32.To support his submissions the 3rd respondent relied the cases on 4MB Mining Limited -vs- Foreign Fowerders (K) Limited & 3 Others the Court stated as follows:“The Common Law principle that the agent of a disclosed principle can not be sued is not absolute. It follows that someone acting on behalf of the principle, whether disclosed or not, may incur either personally in tort or impose vicarious or attributed liability upon his/her principal where such agent may be personally liable to any third party who suffers loss or damage thereby, notwithstanding authorized or ratified by the principal, unless it was deprived of its wrongful character. That having said, the wrongful accusation made by the plaintiff against the 1st and 3rd defendants cannot be wished away merely because the 1st and 3rd Defendants were acting on instructions of a disclosed principal 33.The 3rd respondent also relied on the case of Jackson Sagligram Barubram & 4 Others -vs- Suereca East Africa Limited & Another(2020) KEELC 261(KLR) where the Court relied on case of National Social Security Fund Board of Trustees vs Ankan Holdings & 2 Others (2006) e(KLR) cited with approval the decision of the House of Lords in Williams & Another vs. Natural Health Foods Ltd & Another (1998) 2All ER 577 of 582 held that:“Whether the principal is a company or a natural person or someone acting on its behalf may incur personal liability that the agent of a disclosed principle can not be sued is not absolute. It follows that someone acting on behalf of the principle, whether disclosed or not, may incur either personally in tort or impose vicarious or attributed liability upon his/her principal where such agent may be personally liability in tort as well as imposing vicarious liability upon his principal.”“It follows, therefore, that an agent may be personally liable for tortious act committed in the cause of its employment.The cases cited by Counsel for the 1st Defendant in which the Courts held that an agent to a disclosed agent may be sued involved causes of action arising from contracts….” 34.The Court has carefully re-evaluated the evidence adduced before the trial Court. It has also considered the evidence submissions by the parties. This being first appeal the Court is obligated to re-evaluate the evidence adduced in the trial in order to arrive at its own independent conclusion bearing in mind that it has neither seen or heard the witness and should make allowance in this respect (see: Selle vs Associated Motor Boat Company(1968) EA). Having analyzed the evidence on record, the pleadings and submissions by the parties, the court only identified two issues for determination. The issues are:1.Whether 1st and 3rd respondent counterclaims disclosed causes of action and made substantive reliefs against the appellant2.Whether the appellant is liable at the ratio of for the sum of Kshs.13,583,667 being accrued demurrage and storage charges for the subject goods herein as at 2.3.2021 at the ratio of 50% until the date of collection of the vehicles or at all3.Who shall pay the costs of this suit and costs of the trial. 35.The 3rd respondent in its counterclaim avered that it is the lawful and or beneficial owner of the subject properties herein and that the 4th respondent was obligated to pay demurrage and or storage charges as the same accrued because the 4th respondent filed the suit before the trial court yet it no longer had any interest over the suit properties. The 3rd respondent also sought a declaration against the appellant’s employees and or agents acting and or purporting to cancel the amendment process of the KRA system which actions directly caused the accrual of demurrage and or storage charges were ultra vires and therefore null and void. It, further, prayed that 1st respondent should be liable for negligence and or vicariously liable for the negligent action of its employees and/or is agents and that it should not, therefore, charge the accrued demurrage /or storage charges against the 4th respondent. The 3rd respondent, however, made no specific claim for award of demurrage or storage against the appellant herein. 36.On the other hand, the 1st respondent, in its reply to 4th respondent’s defence and counterclaim claimed against the appellant, the 2nd respondent and the 3rd respondent jointly the sum of Kshs.13,583,677 being storage and demurrage charges as at 2,3, 2021.It also prayed for demurrage and storage from the said date until the collection of the subject motor. The claim was however was not specifically pleaded by the in the body of the counterclaim itself 37.Parties are bound by their pleadings. The Court, therefore, agrees with the appellant that counterclaims by the 1st and 3rd respondents are with variance with the prayers made therein. It is also my finding that in the 1st and 3rd respondent counterclaims pleadings and prayers therein do not support the apportionment of 50% of Kshs.13,583,667 being demurrage and storage charges awarded against the appellant. It is, therefore, my finding the trial magistrate erred in making the award as it was not supported by the parties’ pleadings. (See. Mule & 3 others case (supra). 38.Even on merit, it is my finding that the appellant is not liable to pay the demurrage and storage charges herein at all.PW1, Melekzadek Oduor, the 4th respondent’s Director, stated that before the 4th respondent could pay the balance of the purchase price of the subject vehicles herein, it was informed by the appellant that one Moses Mwenda had presented the “original documents” and an affidavit stating that he was one of the directors of the plaintiff when he was not. The said Moses Mwenda, PW1 stated, also claimed the 4th respondent had sold the vehicles to 3rd respondent. 39.PW1, further, stated that he visited the appellant and presented it the 4th respondent documents which included a CR 12, certificate of incorporation and KRA pin. Thereafter, PW1 stated, a representative of the appellant apologized and acted immediately by making calls and sending emails to Customs to stop the amendments that were being undertaken as the affidavit sworn by Moses Mwendwa was a forgery. 40.DW1, Susan Wanjiru Ndirangu, an employee of the appellant stated that the manifest of the subject vehicles herein was cancelled by the Customs because the plaintiff requested based on the affidavit presented by Moses Mwenda Murungi. She, therefore, denied the appellant was negligent. 41.DW3, Wycliffe Musili, an employee of KRA working as Revenue Collector confirmed the appellant made a request to Customs on 27.3.2017 to amend the subject manifest herein. The request, was however, DW3 stated, rejected since on 31.3.2017 as the appellant wrote a letter asking Customs to reject the amendment based on an affidavit sworn by Moses Mwenda Murungi. The 2nd respondent, also received a letter from the 4th respondent, the DW1 stated, there were owners of the cargo. 42.DW4, Silas Mwangi Kamau, who was the 3rd respondent agent testified that on 14.2.2017 he received an email from Trendy Information Company offering to sell him the three subject motor vehicles herein which arrived in Mombasa on 23.12.2016 but which had not been paid by the person who bought them. Trendy Information Company Limited, DW4 stated, issued a letter of guarantee to the 3rd respondent and a manifest corrector to change the consignee from the 4th respondent to 3rd respondent. He denied knowledge of Moses Mwendwa. 43.The witness, further, noted that after interim orders were sought and obtained by the 4th respondent as a result which the subject goods herein remained in the custody of the 2nd defendant and demurrage and storage charges have accrued 44.The Court agrees that faced with the serious allegations of fraud demonstrated by the evidence of PW1 and DW1, it is my finding the appellant it acted in good faith by writing to the Commissioner of Customs requesting that the manifest to protect the principal from potential exposure to claims of fraud. 45.The Court also finds that trial magistrate erred in condemning appellant to pay 50% of the accrued storage and demurrage charges at Kshs13,583,667.00 as at 2nd March 202 without taking into account that the demurrage and storage charges, begun accruing four (4) days after the motor vehicles had been imported in Kenya being the 26th December 2016 and three (3) months before 3rd respondent bought the motor vehicles from the Shipper. This position is supported by the testimony of one Isaac Cherono, the Human Resource Manager of 1st respondent, who testified that on 24th August 2024, that subject motor vehicles were lying at 1st premises for 53 days since the 4th respondent had failed to fully pay their value.There was also no basis for the trial Court to apportion liability against the appellant when 4th respondent sought and was granted restraining orders against the appellant from releasing the subject motor vehicles which orders remained in force until the determination of the suit. 46.Based on the Court’s findings above, this appeal succeeds and this Court grants the following prayers:a.That the appeal is allowedb.That the Judgement of Hon.J.B.Kalo (CM) delivered on 7th in Mombasa Chief Magistrate No.713 of 2017 is set aside and substituted with an order dismissing the suit as against the appellant.c.The 4th respondent be held liable fully liable for the sum of Kshs.13,583,667 being demurrage and storage charges owing as at 2.3.2021 until the date of collection of the vehiclesd.The 4th respondent is ordered the 4th respondent to pay the appellant, 1st,2nd and 3rd respondents cost of this appeal and the lower court Mombasa CMCC No.713 of 2017 DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS THIS 9TH DAY OF JUNE 2026SignedHON. P.K. ROTICHJUDGE