https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6088

Mogo Auto Ltd v FA (A Minor Suing through the Father and Next Friend AA) & another (Civil Appeal E564 of 2024) [2026] KEHC 6088 (KLR) (Civ) (7 May 2026) (Judgment) Neutral citation: [2026] KEHC 6088 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E564 of 2024 AN Ongeri, J May 7, 2026 Between Mogo Auto Limited Appellant and FA (A Minor Suing through the Father and Next Friend AA) 1st Respondent MKS 2nd Respondent (Being an appeal from the judgment of Hon. S. N. Muchungi (Mrs.) PM) in Milimani CMCC No. E4094 of 2022 delivered on 26/4/2024) Judgment 1.The respondent FA (a minor suing through her father and next friend AA) filed Milimani CMCC No. E4094 of 2022 seeking general damages for pain and suffering, special damages of kshs.9,550, future medical expenses of kshs.450,000 together costs of the suit and interest for injuries the minor sustained on 16/11/2021 along 3rd Avenue Eastleigh. 2.It is alleged on the plaint dated 24/6/22 that the minor was lawfully walking along 3rd Avenue Eastleigh on the material day when the rider of motor cycle registration no. KMFM 650M carelessly and negligently rode the said motor cycle and lost control and hit the minor as a result of which she sustained serious bodily injuries. 3.The minor said she was about to start crossing the road at a zebra crossing when she was hit by the motor cycle. 4.The appellant entered appearance and filed a defence denying the claim. 5.The appellant said it had financed one Florence Syombua Mwenda a loan of kshs.132,790 to buy the motorcycle. 6.Further that the appellant held the log book as a collateral for the loan. 7.The minor sustained the following injuriesi.Minimally displaced fracture of maxillary alveolar process.ii.Lost upper central incisoriii.3rd degree loosening left lateral incisor.iv.Ethroid and maxillary hemosinuses 8.The parties agreed to have both medical reports produced by consent. The two reports awarded 20% permanent disability. 9.The trial court found the defendants 100% liable and assessed damages as follows;General damages for pain and suffering ksh.700,000Future medical expenses ksh. 450,000Special damages ksh. 5,550Total ksh.1,150,550 10.The appellant filed this appeal against the said judgment on the following grounds:i.That the learned magistrate erred in law and in fact by failing to find that it was the rider of motor cycle KMFM 650M to be blamed for causing the accident and not the appellant herein.ii.That the Learned Magistrate erred in law and in fact by failing to find that on the material day of the accident the Appellant herein did not have control over motorcycle KMFM 650M thus it was unfair to blame the Appellant herein.iii.That the Learned Magistrate erred in law by not finding that the onus of proof for negligence is upon the 2nd Respondent and not the Appellant hereiniv.That the Learned Magistrate erred in law and in fact by failing to find that the Appellant is only a financier and therefore not vicariously liable for the actions of the rider of motorcycle KMFM 650Mv.That the learned magistrate erred in law and in fact by failing to find that the appellant as financiers did not have control over the assets they finance and that they could not be held vicariously liable.vi.That the learned magistrate erred in law and in fact by find that it was upon the appellant to bring the borrower when instead it was upon the 1st respondent to sue the right person.vii.That the Learned Magistrate erred in law by failing to find that that the 1st Respondent did not proof his case on a balance of probability.viii.That the Learned Magistrate erred in law by failing to find that at the time of the accident, the appellant was not negligent.ix.That the Learned Magistrate erred in law by failing to find that at the time of the said accident, the rider of the said motor vehicle was not an agent nor an employee of the appellant herein.x.That the learned magistrate erred in law and fact by awarding the 1st Respondent kshs. 700,000 and kshs 450,000 as future medical fees without proof that indeed the 1st Respondent was entitled to the same.xi.That the Learned Magistrate's decision was erroneous by failing to find that vicarious liability is not pegged on legal ownership of a motor cycle but on employer/employee and/or agent/principle relationship. 11.The parties filed written submissions as follows; the appellant submitted that the 1st respondent failed negligence on the part of the appellant as the only reason he was sued was because the appellant’s name. 12.The appellant in its defence adduced evidence that they were just financiers to the purchase of the motor cycle and were only in the log book because of their financial interest in the said motor cycle. 13.The driver of the said motor cycle testified that he was never the appellant’s employee. 14.The appellant at trial testified that they as financiers they did not have any control over the motor cycle as it was under the control of the person who was financed. 15.This backed up by the decision that was made in John Nderi Wamugi vs. Ruhesh Okumu Otiangala, Civil Appeal No. 24 of 2015 as cited with authority in the case of Equator Distributors v Joel Muriu & 3 others [2018] eKLR where this Court stated:“Vicarious liability is not pegged on legal ownership (of a vehicle) but on employer/employee or agent/principal relationship with particular emphasis on who employed and controlled the tortfeasor.” 16.The appellant argued that in Richard Obiero as cited with authority in the case of Diamond Trust Bank Kenya Limited v Richard Mwangi Kamotho & 2 others [2017] eKLR Bosire J (as he then was) went further in his ruling by asserting that the proven financier in the purchase of a vehicle is a nominal owner having no custody or control of the vehicle, and he doubted whether such a financier owed a duty of care to a claimant “as would have given rise to (vicarious) liability” against the financier. 17.In this case the court agreed that the financier of a motor vehicle cannot be held liable for the acts and omissions of the debtor who has total control of the motor vehicle. 18.The respondent alternatively submitted that at trial the police officer confirmed that the said accident occurred and that the 1st respondent herein was injured. 19.The Police officer further indicated that the appellant’s motor vehicle was to blame for the accident. the second witness confirmed that the minor was hit by the appellant’s motor vehicle and that the minor did not in any way contribute to the occurrence of the accident. 20.It was the 1st respondent’s argument that they proved liability as the appellant’s witnesses admitted that the 1st respondent was not to blame. 21.On general damages the 1st respondent submitted that the injuries sustained by the minor was minimally displaced fracture of maxillary alveolar process, lost upper central incisors at the scene of the accident, 3rd degree loosening left lateral incisors and ethmoid and maxillary hemosinuses. 22.The 1st respondent produced a copy of the medical report by Dr. J.W. Siboko and another from Mama Lucy Kibaki Hospital. 23.The 1st respondent submitted that the award of Kshs. 700,000 as general damages was justified and in support cited Hussein Sambur Hussein v Shariff A. Abdulla Hussein & 2 others [2022] KEHC 2341 (KLR) when it awarded the Respondent general damages of Kshs. 700,000.00/ = for almost comparable injuries. 24.The following issues fall for determination in this appeal;i.First, whether the Appellant, Mogo Auto Limited, can be held vicariously liable for the negligence of the motorcycle rider, given its position as a financier of the motorcycle.ii.Second, if liability is established, whether the quantum of damages awarded by the trial court was manifestly excessive or otherwise erroneous, warranting interference by this Court. 25.I have carefully considered the proceedings, the judgment of the trial court, the grounds of appeal, the written submissions of counsel, and the relevant legal principles and authorities. 26.The Appellant, Mogo Auto Limited, contends that the learned trial magistrate erred in failing to find that it was the rider of the motorcycle who was solely to blame for the accident, and not the Appellant. 27.The Appellant's primary argument is that it was merely a financier, having provided a loan to one Florence Syombua Mwenda to purchase the motorcycle, and that its name on the logbook was only as a collateral for the loan. 28.The Appellant maintains it had no control over the motorcycle on the material day, and the rider was neither its agent nor its employee, and therefore, the doctrine of vicarious liability should not attach to it. 29.The law regarding the liability of a registered owner who is merely a financier is well-settled in our jurisdiction. 30.Section 8 of the Traffic Act provides that the person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner. 31.However, this presumption is rebuttable. The presumption of ownership under Section 8 of the Traffic Act is prima facie evidence which can be rebutted by evidence to the contrary. 32.Other forms of ownership such as beneficial or possessory ownership may be proved. 33.In the present case, the Appellant adduced evidence at trial, through its witness, that it was a financier and did not exercise any control over the motorcycle. 34.The rider of the motorcycle himself testified that he was not an employee of the Appellant. 35.This evidence was not effectively controverted by the Respondents. 36.The mere fact that the Appellant’s name appeared in the logbook as a security for a loan, without any evidence of control, direction, or benefit from the operation of the motorcycle, is insufficient to sustain a finding of vicarious liability against it. 37.Consequently, this Court finds that the trial court erred in holding the Appellant vicariously liable for the negligence of the motorcycle rider. 38.The rider, who was in possession and control of the motorcycle, is the proper party to bear liability for the accident. 39.Therefore, the appeal on the ground of liability succeeds. 40.Having determined that the Appellant is not liable, the issue of quantum of damages may, strictly speaking, be moot. 41.However, for completeness and given that the 2nd Respondent is the rightful tortfeasor, this Court will briefly address the award on quantum. 42.The trial court awarded Kshs. 700,000 as general damages for pain and suffering and Kshs. 450,000 as future medical expenses. 43.The Appellant challenged these as being excessive and without proof. The 1st Respondent argued that the award was justified, citing comparable injuries. 44.The principles upon which an appellate court can interfere with an award of damages by a trial court are well-established. 45.An appellate court will not set aside an award of damages simply because it would have awarded a different figure, but only if it is so inordinately high or low as to represent an entirely erroneous estimate relative to the injuries suffered and prevailing precedents. 46.In this case, the minor sustained a minimally displaced fracture of the maxillary alveolar process, the loss of an upper central incisor, 3rd degree loosening of the left lateral incisor, and ethmoid and maxillary hemosinuses, with a 20% permanent disability. 47.While these injuries are serious, a review of comparable recent awards suggests that the sum of Kshs. 700,000 for general damages is on the higher side. 48.An award of Kshs. 600,000 is more commensurate compensation for pain, suffering, and loss of amenities and the same is substituted. 49.On the future medical expenses of Kshs. 450,000, this Court notes that the same was based on a medical report. 50.The Respondent did not adduce any concrete evidence such as a treatment plan or a quotation from a recognized medical facility to justify this specific sum. 51.While future medical expenses are a form of general damages as they are not capable of precise quantification, they must still be proved on a balance of probabilities and some reasonable basis for the estimate must be provided. 52.An award of Kshs. 250,000 is a more reasonable and just estimate for the future dental and maxillofacial care required by the minor. 53.In conclusion, the appeal in respect of the appellant is meritorious on the primary ground of liability. 54.The judgment of the trial court in Milimani CMCC No. E4094 of 2022 is hereby set aside as against the appellant only. 55.Consequently, the Respondent’s suit against the Appellant, Mogo Auto Limited, is dismissed. 56.However, the appellant is not entitled to costs for reasons that he failed to enjoin thepurchase the motorcycle as an interested party. 57.The 2nd Respondent, Mark Katiku Simon, who was the actual tortfeasor in control of the subject motorcycle at the material time is held 100% liable for the accident. 58.This court makes final orders as follows;i.The 1st Respondent’s suit against Mogo Auto Limited is dismissed with no orders as to costs.ii.The 2nd Respondent, Mark Katiku Simon (the rider), is held 100% liable for the accident.iii.General damages are re-assessed at Kshs. 600,000,iv.Future medical expenses re-assessed at Kshs. 250,000.v.Special Damages 5,550Total Awarded Sum 855,550 59.Judgment be and is hereby entered in favour of the Appellant against the 2nd Respondent in the sum of Ksh. 855,550 together with costs and interest at court rates from the date of the judgment in the trial court until payment in full. 60.Each party shall bear their own costs of this appeal. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 7TH DAY OF MAY, 2026.A. N. ONGERIJUDGEIn the presence of:Mrs Kavai for the ApplicantMr Kiptanui for the 1st Respondent