https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9770

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CIVIL APPEAL NO. E192 OF 2024** **DICKSON DANIEL MURIUKI WANGAI……………..….APPELLANT** **VERSUS** **LUCY NDUKU MUEMA………………………………...RESPONDENT** ***(Being an appeal from the judgment of HON. C. N. ONDIEKI (PM) in MACHAKOS CMCC NO. E310 of 2021 delivered on 24/6/2024).*** **JUDGMENT** 1. The cause of action in this case arose from a road traffic accident on 26th October 2019, in which the respondent's motor vehicle was allegedly struck from the rear by a vehicle driven by the 2nd appellant and owned by the 1st appellant, causing extensive material damage. 2. The respondent, whose vehicle was insured by Mayfair Insurance Company Limited, brought the suit to recover the repair and associated costs that her insurer had already compensated her for, invoking the doctrine of subrogation. 3. The trial court found in favour of the respondent and ruled that the appellants were jointly and severally 100% liable. 4. In reaching this decision, the court noted that an interlocutory judgment had already been entered against the 2nd appellant for failing to defend the suit. 5. Regarding the 1st appellant, although he contested ownership of the motor vehicle and produced a protest letter alleging fraud against a third party, the court found that this letter did not constitute the cogent, compelling, and irresistible evidence required to rebut the presumption of ownership under section 8 of the Traffic Act, especially when weighed against the official motor vehicle register. 6. The court therefore concluded that the 1st appellant was the registered owner and vicariously liable for the negligence of the 2nd appellant. 7. On the doctrine of subrogation, the court held that it was properly invoked because the insurer had fully settled the claim, was only seeking what it had actually paid, the contract was one of indemnity for material damages, and the suit was correctly brought in the name of the insured. 8. Further, that as an insurer cannot sue in its own name under this doctrine, a principle affirmed in **Africa Merchant Assurance Company v Kenya Power & Lighting Company Limited [2018] eKLR**. 9. Regarding the claim for special damages totaling Kshs. 322,950, the court reiterated the established principle that such damages must be specifically pleaded and strictly proved. 10. The trial court relied on the definitions provided in **Jogoo Kimakia Bus Services Ltd vs. Electrocom International Ltd (1992) KLR 177** and **Joseph Kipkorir Rono vs. Kenya Breweries Limited & Another, Kericho HCCA No. 45 of 2003**, and was satisfied that the documentary exhibits produced by the respondent had strictly proven the claim. 11. Consequently, the trial court exercised its discretion in favour of the respondent and entered judgment for the sum of Kshs. 322,950 with interest at court rates from the date of filing the suit until payment in full. 12. The trial court awarded the respondent the costs of the suit with interest at court rates from the date of the judgment. 13. The appellant appealed against the said judgment on the following grounds; 14. THAT the Learned Magistrate erred in awarding the sum of Kshs. 322,950.00/ by way of liquidated damages to the Respondent. 15. THAT the Trial Magistrate erred in law and in fact in finding that the Defendants be held liable jointly and severally for the occurrence of the alleged accident. 16. THAT the Trial Magistrate erred in law and in fact in making the finding on liability at 100% in favour of the Plaintiff. 17. THAT the Learned Magistrate erred both in law and in fact in failing to appreciate that the Plaintiff's evidence was misleading and it lacked credibility. 18. THAT the Learned Trial Magistrate erred in law and in fact by failing to consider that the Appellant had proved beyond reasonable doubt that he was not the owner as at the time of the accident. 19. THAT the Learned Trial Magistrate's decision occasioned a miscarriage of justice. 20. THAT the Learned Trial Magistrate acted on wrong principles of law. 21. THAT the judgment on liability was against the weight of evidence 22. The parties filed written submissions as follows; The appellant, Dickson Daniel Muriuki Wangai, submitted that he appeals the judgment of the lower court in Machakos CMCC E310 OF 2021, which held him jointly and severally liable with the 2nd defendant for a road traffic accident and awarded the respondent special damages. 23. The appellant contends that the learned magistrate erred in law and fact by concluding that he was the registered owner of the motor vehicle KAY 581Z, arguing that he was not the true owner and that the registration was a result of identity theft. 24. He asserts that he had given his identification details to his agent, Rutere Wambugu, for a previous transaction, and the agent fraudulently registered the subject vehicle in his name without his consent, a matter he reported to the NTSA and the police, obtaining OB No. 35/25/07/2023. 25. The appellant emphasizes that the 2nd defendant, Robin Mutua Wambua, was driving the vehicle at the time of the accident and was also the policy holder, which he submits is sufficient proof of ownership. 26. He relies on the provisions of Section 107 of the Evidence Act, Cap. 80, and the case of Ahmed Mohammed Noor v Abdi Aziz Osman [2019] KEHC 12480 (KLR) to argue that the burden of proof lies on the respondent, who failed to discharge it. 27. He further invokes Samuel Stephen Were suing as the representative of **Jared Ochieng Obuogo (Deceased) v Sukari Industries Limited [2016] eKLR,** where the court reiterated that the standard of proof in civil claims is on a balance of probabilities, and submits that he demonstrated on that standard that he was not the owner. 28. The appellant also cites Section 8 of the Traffic Act, which deems the registered person the owner unless the contrary is proved, and relies on **Nancy Ayemba Ngaira v Abdi Ali [2010] eKLR, where Ojwang, J. (as he then was)** held that the registration certificate is not final proof of ownership and that other forms of ownership, such as beneficial or possessory ownership, may be proved. 29. The appellant contends that the lower court failed to properly consider this evidence and the investigation report by Touchline Insurance Investigators, which confirmed the identity theft. 30. On quantum, the appellant argues that the respondent failed to call the driver of the other vehicle or the investigating officer, and that the claim payment requisitions were not signed, making it difficult to ascertain if payments were made, thus the special damages of Kshs. 322,950 were erroneously awarded. 31. In conclusion, the appellant implores the court to set aside the lower court's decision on liability and quantum, and to hold the 2nd defendant solely liable. 32. On costs, he relies on the Supreme Court decision in **Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] KESC 31 (KLR),** which affirmed the principle that costs follow the event, and prays for costs of the appeal and interest at court rates. 33. The respondent’s submissions address two main issues: whether the appellant was the registered owner of the subject motor vehicle, and whether the respondent was entitled to the damages awarded by the trial court. 34. The respondent acknowledges that the appeal challenges both liability and quantum, and notes the established role of a first appellate court, which is to re-evaluate the evidence and draw its own conclusions while bearing in mind that it did not see or hear the witnesses, and should not disturb the trial court’s findings unless they are clearly erroneous. 35. This was as per the principles in **Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123.** 36. On the issue of ownership, the respondent invites the appellate court to reconsider the evidence and uphold the trial court’s finding that the appellant was the registered owner of vehicle KAY 581Z as at the date of the accident, based on a copy of records from the Registry of Motor Vehicles. 37. The respondent argues that the appellant failed to discharge his burden under Section 8 of the Traffic Offences Act, which deems the registered person as the owner unless the contrary is proved. 38. Further, that the appellant’s mere production of a letter regarding an alleged sale to Ken Wambugu Rutere was insufficient because he did not call that individual to testify, join him as a third party, or summon the registrar to confirm any complaint. 39. The respondent further contends that the appellant thus failed to prove the existence of facts he asserted, as required under Section 107(1) of the Evidence Act. 40. On liability, the respondent maintains that the evidence, including the police abstract, demonstrated that the appellant’s driver negligently caused the accident by ramming into the respondent’s vehicle. 41. On quantum, the respondent relies on the principle in **Butt v Khan (Civil Appeal 40 of 1977) [1978] KECA 24 (KLR)**, which states that an appellate court will not disturb an award of damages unless it is inordinately high or low or based on wrong principles. 42. The respondent contends that the trial court correctly awarded Kshs. 322,950/-, which was proved through the testimony of the respondent’s witness and supporting documents, including payment vouchers for repair costs, assessment, re-inspection, car hire, and tracing charges, all settled by the insurer under subrogation. 43. The respondent concludes by praying that the appeal be dismissed with costs, as the trial court did not err in law or fact, and that the costs of the appeal also be awarded to the respondent. 44. The issues for determination in this appeal are as follows; 45. *Whether the trial court erred in finding that the first appellant was the registered owner of motor vehicle registration number KAY 581Z and was therefore vicariously liable for the accident,* 46. *Whether the respondent's suit was properly anchored on the doctrine of subrogation, and* 47. *Whether the respondent strictly proved the claim for special damages totaling Kenya shillings 322,950* 48. In addressing the first issue regarding ownership and vicarious liability, the first appellate court must re-evaluate the evidence presented before the trial court while keeping in mind the timeless principles set out in **Selle and Another versus Associated Motor Boat Company Limited and Others(supra).** 49. That case dictates that an appellate court should not lightly disturb findings of fact by a trial court unless they are based on a misdirection or are clearly erroneous. 50. Section 8 of the Traffic Act, Chapter 403 of the Laws of Kenya, creates a statutory presumption that the person registered in the official motor vehicle register is the owner of the vehicle unless the contrary is proved. 51. While the case of **Nancy Ayemba Ngaira versus Abdi Ali (supra)** establishes that a registration certificate is not final or absolute proof of ownership and that beneficial or possessory ownership may be demonstrated by other means, the burden of proving that the register is incorrect rests squarely on the party asserting that fact under Section 107 of the Evidence Act, Chapter 80 of the Laws of Kenya. 52. The first appellant's defence that his identity was stolen by his agent, Rutere Wambugu, and his production of a protest letter, a police report, and an investigation report by Touchline Insurance Investigators do not suffice to rebut the official motor vehicle register on a balance of probabilities. 53. Such assertions must be backed by cogent and irresistible evidence. By failing to join the said agent as a third party to the suit, and failing to summon the Registrar of Motor Vehicles to confirm the status of the complaint, the first appellant failed to discharge his evidentiary burden. 54. Furthermore, the fact that the second appellant was the driver and policyholder does not automatically strip the registered owner of vicarious liability, especially since an interlocutory judgment had already been entered against the second appellant for failing to defend the suit. 55. The trial court was therefore entirely correct in relying on the official register and holding the first appellant vicariously liable as the registered owner. 56. Regarding the second issue on the doctrine of subrogation, Kenyan jurisprudence clearly delineates the boundaries of how an insurer can recover funds paid out to an insured party. 57. As established in **Africa Merchant Assurance Company versus Kenya Power and Lighting Company Limited (supra),** an insurer cannot sue a third-party tortfeasor in its own name under the doctrine of subrogation. 58. The suit must be brought in the name of the insured whose interest was indemnified. The facts demonstrate that Mayfair Insurance Company Limited fully settled the material damage claim, the underlying contract was strictly one of indemnity, and the suit was properly instituted in the name of the respondent. 59. The doctrine of subrogation was therefore lawfully and flawlessly invoked by the trial court. 60. On the final issue of quantum and the strict proof of special damages, the law in Kenya is well-settled that special damages must be specifically pleaded and strictly proved. 61. The trial court properly guided itself by the precedents of **Jogoo Kimakia Bus Services Limited versus Electrocom International Limited (supra)** and **Joseph Kipkorir Rono versus Kenya Breweries Limited and Another(supra)**. 62. The respondent produced detailed documentary exhibits, including payment vouchers for repair costs, assessment fees, re-inspection fees, car hire, and tracing charges. 63. The first appellant’s objections regarding the lack of signatures on certain claim requisitions and the failure to call the investigating officer or the other driver do not invalidate the robust paper trail of actual expenditures incurred and settled. 64. Applying the principle in **Butt versus Khan (supra**), an appellate court will not interfere with an award of damages unless it is shown that the trial court acted on wrong principles or that the award is inordinately high or low. 65. The special damages of Kenya shillings 322,950 were strictly proved by the documentation, and there is no basis to disturb the trial court's assessment. 66. Consequently, the final decision of this court is that the appeal lacks merit and is hereby dismissed in its entirety. 67. The judgment of the trial court holding the appellants jointly and severally one hundred percent liable, alongside the award of Kenya shillings 322,950 with interest at court rates, is upheld. 68. The costs follow the event, and therefore the costs of this appeal and the court below are awarded to the respondent. 69. Orders to issue accordingly. Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 25th day of June, 2026. 1. **N. ONGERI** **JUDGE** In the presence of: No appearance for the Appellant No appearance for the Respondent Chrispin – Court Assistant