https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9058

Gabow v Omweri & another (Civil Appeal E132 of 2025) [2026] KEHC 9058 (KLR) (Civ) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9058 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E132 of 2025 BW Murunga, J June 25, 2026 Between Khalif Ahmed Gabow Appellant and Mark Onsase Omweri 1st Respondent Jeremiah Maina 2nd Respondent (Being an appeal against the Judgment of Hon. Justine Asiago, Resident Magistrate, delivered on 13th February 2025 in Milimani SCCCOM No. E16320 of 2024) Judgment Background 1.This is an appeal arising from the Judgment of Hon. Justine Asiago, Resident Magistrate, delivered on 13th February 2025 in Milimani SCCCOM No. E16320 of 2024. The dispute is about storage charges for a motor vehicle. 2.The Appellant filed a claim in the Small Claims Court seeking payment of Kshs. 359,000 allegedly for storage of Motor Vehicle KCC 735F, claiming that the same was stored at his premises on behalf of the 1st Respondent. 3.The trial court, in a detailed ruling delivered by Hon. Justine Asiago, pronounced itself in its disposition as follows:i.Judgement is hereby entered in favour of the Claimant against the Third Party for the sum of KShs. 359,000 which attracts interest from the date of filing the suit until payment in full.ii.Motor vehicle registration number KCC 735F is hereby released unconditionally to the Respondent.iii.The Third Party shall cater for the costs of the suit assessed at KShs. 30,000 each for the Claimant and the Respondent. 4.The Appellant being dissatisfied with the decision has appealed to the High Court and stated the following as the Grounds on which the appeal was preferred:i.The adjudicator erred in law by failing to appreciate and apply the principle that actions of an agent bind the principalii.The adjudicator erred in law by failing to take cognizance of the position in law that not all contracts have to be in writing and that implied contracts are also enforceableiii.The adjudicator erred in law by failing to appreciate and apply the principles of the law of contract and breachiv.The adjudicator erred in law by failing to take into consideration and to appreciate that the evidence by the Appellant was not rebutted nor controverted.v.The adjudicator erred in law by failing to consider and give probative value to the evidence adduced by the Appellant in support of his claim against the Respondent. 5.The parties agreed to dispose of the Appeal by way of written submissions. 6.The Appellant submitted that despite the Adjudicator correctly identifying that the first issue for consideration was whether the 2nd Respondent herein was an agent of the 1st Respondent herein, the Adjudicator failed to determine the same and proceeded to analyse the facts of the case against an improper position in law 7.The Appellant also submits that the 2nd Respondent was an agent of the 1st Respondent. 8.The Appellant quoted Lucy Nungari Ngigi & 4 others v National Bank of Kenya Limited & another [2015] eKLR which quoted with approval Bowstead and Reynolds on Agency, Seventeenth Edition, Sweet & Maxwell, Page 1-001, which defines such a relationship to be:-“... a relationship which exists between two persons, one whom expressly or impliedly consents that the other should act on his behalf so as to affect his relations with third parties, and the other of whom similarly consents so to act or so acts.” 9.The Appellant noted that the general expectation of an owner of a motor vehicle who takes motor vehicle to the garage is to have the same repaired at a cost. This includes costs directly related to repairing the Motor Vehicle or incidental to the same. On the one part, it is the duty of the mechanic to diagnose the issues with the Motor Vehicle; source for the necessary parts required to fix the identified issues; procure the said parts; and perform the repairs skilfully, in good faith, and within reasonable time; all whilst exercising due care over the vehicle. 10.On the other part, it is the duty of the owner of the Motor Vehicle to provide accurate information about the vehicle’s issues; pay for the services upon completion; and either pay for or indemnify the mechanic for any expenses incurred during execution of the said tasks. The existence of such reciprocal obligations, where the mechanic, while fulfilling his repair mandate, undertakes tasks and engagements with third parties on behalf of the owner and the owner remains liable for the outcomes of those tasks and engagements— including financial obligations—demonstrates mutual consent and reliance, which are the hallmarks of an agency relationship. 11.The 1st Respondent in his submissions urges this appellate Court to uphold the findings and judgment of the trial court in SCCCOM No. E16320 of 2024, which properly found that there existed no contractual or legal relationship between the Appellant and the 1st Respondent, and that the 2nd Respondent was solely liable for the Appellant's claim 12.In further support of the 1st Respondent's position, they drew the attention of this Court to the decision in Agricultural Finance Corporation v Lengetia Ltd & Jack Mwangi [1985] eKLR.The core issue before the Court of Appeal was whether a person who is not a party to a contract could enforce obligations or claim benefits under that contract. The Court held that a contract cannot impose obligations or confer rights on any person who is not a party to it, emphasizing the principle of privity of contract. It was held that“As a general rule, a contract cannot confer rights or impose obligations arising under it on any person except the parties to it. Therefore, a third party cannot enforce a contract even if the contract was made for his benefit and purports to give him the right to do so.” 13.The 1st Respondent submits that they neither instructed the 2nd Respondent to secure storage services nor ratified the alleged arrangement. The Appellant's attempt to infer agency from mere delivery of the vehicle for repairs offends both factual logic and the settled principles of agency law 14.The Respondent also cites Kenya National Capital Corporation v Albert Mario Cordeiro & Another [1982] eKLR,where the court held that a principal can only be bound by acts done within the scope of the agent's authority, whether that authority is actual (express or implied) or ostensible apparent to third parties because of the principal's conduct. It was held that“The relationship of agency can only be established by evidence of the principal’s consent, either express or implied, that another shall act on his behalf, and that the agent is subject to the principal's control. No person can be made an agent of another merely by his own acts.”And in the case of Mbugua v Kenya Commercial Bank Ltd [2002] 2 EA 34 (Court of Appeal, Kenya) the court held that;“The mere fact that a person contracts with another to carry out certain work does not, in itself, create a relationship of principal and agent. Liability cannot be imposed on one person for the acts of another unless an agency relationship is clearly established either expressly or by necessary implication." 15.I have considered the record of appeal, the grounds urged, the rival submissions and the authorities placed before me. Sitting as a first appellate court, my duty is to reconsider and re-evaluate the evidence tendered before the trial court and to arrive at my own independent conclusions, conscious always that, unlike the trial Adjudicator, I neither saw nor heard the witnesses: Selle & Another v Associated Motor Boat Co Ltd [1968] EA 123. 16.Stripped of detail, this appeal turns on two issues. First, whether a relationship of principal and agent existed between the 1st Respondent and the 2nd Respondent such as to fix the 1st Respondent with liability for the storage charges. Second, whether the trial court erred in its evaluation of the evidence when it declined to hold the 1st Respondent liable and entered judgment against the 2nd Respondent alone. The first issue is decisive; the second follows from it. 17.As an appellate Court, I have noted the points of convergence in the matter. The motor vehicle belonged to the 1st Respondent. That is not in contention. The 1st Respondent has indicated that he spoke to the 2nd Respondent to repair the vehicle. That is not controverted by the 2nd Respondent who has been reticent in these proceedings and even at the trial Court. 18.There was no agreement between the Appellant and the 1st Respondent. The learned Magistrate looked at the evidence and stated that the negotiation must have taken place between the 2nd Respondent and the Appellant. The 1st Respondent was not there. 19.The connection that is sought to be enforced is one of an agent and principal. Courts have to be careful not to stretch the agent and principal relationship to those relationships that are as fluid as those in this particular matter. 20.It is therefore necessary to state plainly what agency is, and what it is not. Agency is the relationship that arises where one person, the principal, expressly or by his conduct consents that another, the agent, shall act on his behalf so as to affect his legal relations with third parties, and the agent so acts under the principal’s control. It is never presumed; it must be proved, and the burden of proving it lay on the Appellant, who asserted it: Section 107 of the Evidence Act. 21.Most importantly, agency springs from the conduct of the principal, and not from that of the supposed agent. A man is not made another’s agent by his own acts. This was made plain in Nyakinyua and Kange’ei Farmers Company Limited v Kariuki and Gatecha Resources Limited [1983] eKLR, where a finding that a manager had bound his principal was reversed: the alleged agent’s own representations could not, of themselves, establish agency, and the principal had never held him out as authorised to act. 22.What the Appellant in truth invites this Court to do is to collapse the distinction between an agent and an independent contractor. They are not the same thing. A motorist who entrusts his vehicle to a mechanic for repair does not thereby authorise the mechanic to contract with the world at large on his account. 23.In the ordinary case the mechanic is an independent contractor, and a bailee of the vehicle placed in his custody; he is answerable for its safe keeping, but he is not a conduit through whom strangers may fasten liability upon the owner. 24.Were it otherwise, any garage that elected, on its own initiative, to park a customer’s car on a third party’s premises could saddle the unsuspecting owner with charges he never sanctioned and never knew of. The law of agency does not stretch that far, and this Court declines the invitation to stretch it. 25.Whilst it is appreciated that relationships can be inferred, I would not go as far as stating that what was held in Lucy Nungari Ngigi & 4 others v National Bank of Kenya Limited & another [2015] eKLR obtains in this matter. Whilst it is true that a relationship which exists between two persons, one whom expressly or impliedly consents that the other should act on his behalf so as to affect his relations with third parties, and the other of whom similarly consents so to act or so acts, it is not implied at all that there was any consent by the 1st Respondent. Did he for instance consent to the figure of the storage charges that were set by the Appellant? He cannot have consented to what he was not made aware of. 26.If he was made aware of, it has not been demonstrated before the trial Magistrate. 27.Applying these principles, the Appellant’s claim against the 1st Respondent cannot stand. There is no evidence that the 1st Respondent ever represented to the Appellant, by word or by conduct, that the 2nd Respondent was clothed with authority to procure storage at the 1st Respondent’s expense. 28.The 1st Respondent’s single and limited act was to ask the 2nd Respondent to repair the vehicle. He did not choose the Appellant’s yard, did not negotiate or agree the storage rate of Kshs. 359,000, and was never shown to have known of it. An act done outside the scope of an agent’s actual or apparent authority does not bind the principal unless he afterwards ratifies it by taking its benefit; here there was neither authority at the outset nor ratification thereafter. 29.The same conclusion is reached by another route. Even if the storage arrangement be treated as a contract, it was a contract struck between the Appellant and the 2nd Respondent, and to that contract the 1st Respondent was a stranger. By the doctrine of privity of contract, restated by the Court of Appeal in Agricultural Finance Corporation v Lengetia Limited & Jack Mwangi [1985] eKLR, a contract binds only the parties to it and may not be enforced against one who is not a party. The Appellant cannot achieve through the language of agency what privity forbids him to achieve directly, namely to recover from a man with whom he never contracted and whose consent to the bargain was never obtained. 30.A first appellate court does not interfere merely because it might have expressed itself differently; it interferes only where the trial court is shown to have erred in principle, misapprehended the evidence, or arrived at a conclusion no reasonable tribunal could reach: Peters v Sunday Post Ltd [1958] EA 424. No such error has been demonstrated. 31.Having re-evaluated the record for myself, I arrive independently at the same conclusions as the trial court. Disposition and Orders 32.The upshot is that none of the grounds of appeal has been made good. For completeness, and for the avoidance of doubt, I make the following orders:a.The appeal is hereby dismissed in its entirety.b.The Judgment and decree of the trial court delivered on 13th February 2025 in Milimani SCCCOM No. E16320 of 2024 are upheld and affirmed.c.The motor vehicle registration number KCC 735F should be released to the 1st Respondent.d.Each party shall bear their costs for this appeal.It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 25TH DAY OF JUNe 2026.BENARD WAFULA MURUNGAJUDGEIn the presence of:Anyoka instructed by Anyoka for the AppellantN/A instructed by Etyang for the RespondentKevin Babu - Court Assistant