[2024] KEHC 14425 (KLR)
The court found that the third party, Yassin Githinga Njoroge, was the legal owner of the motorcycle at the time of the accident based on the official records, and that the subsequent transfer to Nancy after the accident did not alter this fact. The court also held that liability was correctly assessed at 100%...
Source-derived case information.
- Citation
- [2024] KEHC 14425 (KLR)
- Parties
- Appellant: Indoken Auto Limited; Respondent: Benson Kioko; Respondent: Auto Industries Limited; Respondent: Yassin Githinga Njoroge
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E945 of 2023
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed; lower court judgment upheld
- Judges
- LP Kassan
- Legal Topics
- Road Traffic Accidents, Vicarious Liability, Ownership of Motor Vehicles, Assessment of Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Indoken Auto Limited
Appellant
Benson Kioko
Respondent
Auto Industries Limited
Respondent
Yassin Githinga Njoroge
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the third party was the legal owner of the motorcycle at the time of the accident.
- 2 Whether liability was correctly apportioned at 100% against the second defendant and third party.
- 3 Whether the general damages awarded by the trial court were excessive or justified.
Ratio Decidendi
The court found that the third party, Yassin Githinga Njoroge, was the legal owner of the motorcycle at the time of the accident based on the official records, and that the subsequent transfer to Nancy after the accident did not alter this fact. The court also held that liability was correctly assessed at 100% against the second defendant and third party, as the only eyewitness evidence was unchallenged and the second defendant failed to testify. The general damages awarded by the trial court were deemed modest and appropriate given the plaintiff's serious injuries and permanent disability. Consequently, the appeal was dismissed and the lower court's judgment upheld.
Court Disposition
appeal dismissed; lower court judgment upheld
Orders
- The appeal is dismissed with costs to the respondents.
- The judgment of the lower court is upheld in its entirety.
Full Case Text
Judgment text and source record
27 paragraphs
Indoken Auto Limited v Kioko & 2 others (Civil Appeal E945 of 2023) [2024] KEHC 14425 (KLR) (Civ) (19 November 2024) (Judgment)
Neutral citation: [2024] KEHC 14425 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil
Civil Appeal E945 of 2023
LP Kassan, J
November 19, 2024
Between
Indoken Auto Limited
Appellant
and
Benson Kioko
1st Respondent
Auto Industries Limited
2nd Respondent
Yassin Githinga Njoroge
3rd Respondent
Judgment
1. The Applicant filed grounds of Appeal against the decision of the Lower court dated 25th August 2023 and raised several issues that I shall shortly address having read submissions and the proceedings.1. Ownership of Motor Cycle KMEP 426C. PW1 testified on 29th March 2022. He adopted his witness statements and produced his exhibits. For the purpose of this limp, the plaintiff produced a copy of records dated 26th of November showing that the Motor Cycle was registered in the name of the first defendant. The 2 Defendant on his part produced several documents to prove that it sold the Motor vehicle on 29th August 2018. The most important document is an Application for Transfer dated 17th March 2020 to Nancy after the alleged accident. The third party stated that it had sold the Motor Cycle to Nancy before the accident but failed to enjoin Nancy as the second third party. The fact that the said Motor cycle was transferred to Nancy after the accident is evidence that the 3 Party was its legal owner and can only be rebutted if Nancy had been enjoined in the Suit. This is buttressed by the action of the 1st Defendant who enjoined the 3 Party after a copy of records produced by the Plaintiff that showing it as the legal owner of the Motor Cycle. All documents produced by the First Defendant were not objected to by the third Party. The fact that there is no prove of employee/ servant relationship between the 3 Party and 2 Defendant does not carry a lot of weight on the shoulders of the 1 Defendant and the Plaintiff because the records show that the 3 party legally owned the Motor Cycle at the time of the accident and it is better placed to explain this relationship. Consequently, the learned Magistrate was correct in holding that the Third Party owned the Motorcycle at the time of accident.2. LiabilityThe plaintiff was the only eye witness who testified. There is no contradicting evidence and despite the fact that the abstract has the name of the Second Defendant who was the rider of the motor cycle, he did not testify. The trial magistrate was correct in assessing liability at 100% as against the 2 Defendant and the third Party.3. General DamagesI have read the Authorities on damages and medical report. Doctor Kioko indicated that the Plaintiff suffered the following injuries; Fracture of the 4th and 9th ribs
Haemopneumothrax (internal chest bleeding)
Fractures of 6th and 7th cervical and 1st thoracic
Head concussion
Tear of tendons
2. The above injuries led to 15 percent permanent disability. The Plaintiff would not be able to stand for long or lift heavy objects. These are serious injuries that are set to affect the Plaintiff's quality of life. The general damages awarded by the Trial court are modest and not excessive at all.The upshot of the above is that the Appeal is dismissed with costs and the lower Court's Judgement upheld.
Orders accordingly.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 19TH DAY OF NOVEMBER 2024. L. KASSANJUDGEIn the presence of:Kaba for the AppellantMumbi holding brief Waiganjo for the RespondentCarol – Court Assistant