[2008] KEHC 1376 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

Civil Suit 169 of 2007

JUSTUS KAVISI KILONZO ……………………………….APPLICANT

VERSUS

1 COAST BROADWAY COMPANY LTD

2 DIAMOND TRUST BANK (K) LTD ......…………..DEFENDANTS

R U L I N G

Before me is an application dated 18. 12. 2007 and filed on 20. 12. 2007 by the 2nd defendant, Diamond Trust Bank Kenya Limited. The application is seeking one main order that the Plaint dated 5. 7.2007 be struck out as against the 2nd defendant and the plaintiff’s suit be dismissed as it is misconceived, and bad in law as the owner of a vehicle subject to a Hire Purchase Agreement for the purpose of third party liability is the person in possession thereof only and not the party who has let out the vehicle as the 2nd defendant did in this case.

The application is supported by an affidavit sworn by one Habil Waswani the 2nd defendant’s Company Secretary. In the affidavit, it is deponed that, the 1st defendant and the 2nd defendant entered into a Hire Purchase Agreement with respect to motor vehicle registration Number KAS 772 M and both were registered as a co-owners of the said vehicle. It is further deponed that the 2nd defendant was only registered as a co-owner of the said motor vehicle in its capacity as a financier thereof but the possession, control, direction and management of the said vehicle was at all material times with the 1st defendant, its agents, servants and or employees. It is also deponed on advise of Counsel that the owner of a motor vehicle subject to a Hire Purchase Agreement for purposes of third party liability is the person in possession thereof. In the premises, it is the 2nd defendant’s view that the plaint as against it is frivolous, vexatious and amounts to abuse of the process of the court.

The plaintiff opposes the application and in that regard he has sworn a replying affidavit in which he has deponed that before instituting his suit his advocates had sought and obtained a copy of the records in respect of the said vehicle from the Registrar of Motor Vehicles which records show that the defendants are co-owners of the said vehicle and are therefore both vicariously liable for the negligent acts of their authorized driver, servant and/or agent. In the plaintiff’s view the 2nd defendant’s application is based on a fallacy and should be dismissed.

The application was canvassed before me on 9. 7.2008. I have considered the application, the affidavits filed and the submissions of counsel. Having done so, I take the following view of the matter. The basis of joining the 2nd defendant to these proceedings is its co-ownership of the said motor vehicle. In the 2nd defendant’s statement of defence, the co-ownership is admitted. But the same is explained in paragraph 2 thereof. In that paragraph, the 2nd defendant avers that it is registered as co-owner of the said vehicle only as financier thereof under a Hire Purchase Agreement dated 19. 8.2004. Otherwise the possession, control direction and management of the said vehicle was at all material times with the 1st defendant, its servants and or employees. The plaintiff has not filed a reply to that defence to rebut the 2nd defendant’s averment regarding its status vis-à-vis the said vehicle. It must therefore be taken that the said averment is factually correct. That position is also not denied by the plaintiff in his replying affidavit filed in opposition to this application. I have also noted that the 1st defendant has not denied the 2nd defendant’s said status.

In the premises, I am of the view that despite the registration of the 2nd defendant as co-owner of the said motor vehicle, as a financier of the 1st defendant, the 2nd defendant is not a necessary party to these proceedings. To use the language of Etyang J (now retired), in Mombasa HCC Number 106 of 2002: ALI LALI KHALIFA & OTHERS –VS- POLLMAN’S TOURS & SAFARIS & 2 OTHERS (UR), the 2nd defendant has demonstrated that it hired out the said motor vehicle to the 1st defendant and the said vehicle was used by the 1st defendant in circumstances which do not allow for the doctrine of vicarious liability to apply to the 2nd defendant.

I am alive to the fact that striking out any pleadings should be the last resort of any court and should be resorted to only in plain and obvious cases. In my view however, this is a plain and obvious case where save for the mere registration of the 2nd defendant as a co-owner of the said motor vehicle, the 2nd defendant cannot be liable to the plaintiff vicariously. The upshot, is that the 2nd defendant’s application dated 18/12/07 is allowed as prayed and the plaint is struck out as against the 2nd defendant and the plaintiff’s suit is dismissed as against it.

With regard to costs I have come to the conclusion that there was no way the plaintiff would have known the status of the 2nd defendant before the defence was delivered. The joining of the 2nd defendant was therefore not without basis. In the circumstances the order that commends itself to me is that each party shall bear its own costs of the suit and the application.

Orders accordingly.

DATED AND DELIVERED AT MOMBASA THIS 25TH DAY OF JULY 2008.

F. AZANGALALA

JUDGE

Read in the presence of: Amange fore the 2nd defendant

F. AZANGALALA

JUDGE

25TH JULY 2008