[2025] KEMC 120 (KLR)

Mwania v Ndolo & another; Makindu Motors Limited & 2 others (Third party) (Civil Case 56 of 2019) [2025] KEMC 120 (KLR) (26 May 2025) (Judgment)

Neutral citation: [2025] KEMC 120 (KLR)

Republic of Kenya

In the Makindu Law Courts

Civil Case 56 of 2019

YA Shikanda, SPM

May 26, 2025

Between

Zipporah Wavinya Mwania

Plaintiff

and

Chrisostom Muli Ndolo

1st Defendant

Mary Kasyoka Muli Ndolo

2nd Defendant

and

Makindu Motors Limited

Third party

Joseph Kimeu Masani

Third party

Vascaline Mbuthye

Third party

Judgment

1. Zipporah Wavinya Mwania (hereinafter referred to as the plaintiff) filed this suit on 5/3/2029 vide a plaint dated 20/2/2019. She sued Chrisostom Muli Ndolo and Mary Kasyoka Muthengi also known as Mary Kasyoka Muli Ndolo (hereinafter referred to as the 1st and 2nd defendants respectively) on account of a road traffic accident that allegedly occurred on 1/8/2018 at Kisayani area along Kibwezi-Kitui road. The plaintiff averred that on the material day, she was a lawful pillion passenger aboard motor cycle registration number KMED 6X2 C when motor vehicle registration number KCG 0X0 R was carelessly and negligently driven that it hit motor cycle registration number KMED 6X2 C, thereby occasioning the plaintiff serious injuries.

2. The 1st defendant was sued as the driver and/or beneficial owner of motor vehicle registration number KCG 0X0 R whereas the 2nd defendant was sued as the registered owner thereof. The plaintiff pleaded the following particulars of negligence against the defendants:a.Driving at an excessive speed in the circumstances;b.Driving without due care and attention;c.Failing to brake, stop and swerve and or slow down so as to keep the motor vehicle in control;d.Failing to be on the lookout for other road users including the plaintiff;e.Causing the accident herein and occasioning the plaintiff injuries;f.Hitting motor cycle registration No. KMED 6X2 C; andg.Occasioning serious injuries to the plaintiff.

3. The plaintiff pleaded the particulars of injuries and those of loss and damage and prayed for judgment against the defendants for:i.General damages;ii.Special damages as pleaded;iii.Costs of this suit;iv.Interest on the above.

The Defence. 4. The defendants entered appearance on 19/9/2019 and filed a joint statement of defence on the same day in which they denied the plaintiff's claim in toto. The defendants denied that they were the registered and beneficial owners of motor vehicle registration number KCG 0X0R, denied the occurrence of the accident and denied the particulars of negligence pleaded by the plaintiff. The defendants averred in the alternative and without prejudice that if the alleged accident occurred, which was denied, then the same was wholly caused and/or substantially contributed to by the plaintiff and the rider of motor cycle registration number KMED 6X2C. The defendants pleaded the following particulars of negligence against the plaintiff:a.Failing to take any adequate precautions for her safety;b.Allowing herself to be carried as an excess passenger on the motor cycle;c.Failing to heed to safety precautions while travelling;d.Engaging the rider in a chat that compromised his attention while riding;e.Travelling on the motor cycle without a helmet and a reflector.

5. The defendants further pleaded the following particulars of negligence as against the rider of motor cycle registration number KMED 6X2C (wrongly indicated as KMDQ 1X92S):1. Riding a motor cycle without a valid driving licence;2. Riding an unlicensed motor cycle;3. Riding without due care and attention;4. Riding at a speed that was excessive in the circumstances;5. Failing to observe traffic rules and regulations;6. Carrying excess pillion passengers;7. Failing to stop, brake and/or swerve to avoid the accident;8. Riding a defective/ un-roadworthy motor cycle;9. Failing to heed the presence of motor vehicle registration number KCG 0X0R;10. Causing the accident.

6. The defendants further averred that the rider of motor cycle registration number KMED 6X2C was fully to blame for the occurrence of the accident and was charged with the offence of careless driving vide case number TR. 790 of 2019 at Makindu Law Courts. The defendants denied the particulars of injuries, loss and damage pleaded by the plaintiff and prayed that the suit be dismissed with costs. The defendants’ defence was filed simultaneously with an ex parte application seeking leave to join two third parties who were alleged to be the registered and beneficial owners of motor cycle registration number KMED 6X2C at the material time. That is the 1st and 2nd third parties herein.

1St Third Party’s Defence 7. The 1st third party entered appearance on 7/10/2019 and filed a statement of defence on 22/10/2019. The 1st third party denied the plaintiff’s claim and alleged that as at the time of accident, it had already sold the motor cycle registration number KMED 6X2C to one Vascaline Mbuthye. The 1st third party averred that at the time of sale of the motor cycle, the purchaser was uncooperative in providing full details to enable transfer of the motorcycle to the purchaser. The 1st third party denied being the owner of the motor cycle and averred that the rider of the said motor cycle was not its agent, servant or employee and as such, the 1st third party could not be held vicariously liable for his acts and omissions. The 1st third party denied liability for the accident stating that it had no control whatsoever of the motor cycle and prayed that the suit against it be dismissed. The record indicates that the 1st third party was allowed to join the purchaser of the motor cycle as a third party. The alleged purchaser became the 3rd third party.

2Nd Third Party’s Defence 8. The 2nd third party filed a notice of appointment of Advocates on 9/3/2020 and filed a statement of defence on the same day. However, the record indicates that the 2nd third party amended his defence thrice. The Advocates for the plaintiff are the same ones representing the 2nd third party. In what the 2nd third party called the “further further amended defence”, the 2nd third party denied being liable for the accident and further denied the particulars of negligence attributed to him in the defendants’ defence. The 2nd third party averred that the accident was caused by the fact that motor vehicle registration number KCG 0X0R was carelessly and negligently driven that it hit the motorcycle.

9. The 2nd third party pleaded the following particulars of negligence as against the defendants:a.Driving at an excessive speed in the circumstances;b.Driving without due care and attention;c.Failing to brake, stop, swerve and/or slow down so as to keep the motor vehicle in control;d.Failing to be on the lookout for other road users including the 2nd third party;e.Hitting motor cycle registration number KMED 6X2C; andf.Occasioning the 2nd third party serious injuries.

10. In response to the 3rd third party’s defence, the 2nd third party denied the allegations contained therein and averred that he drove the motor cycle on the material day with the knowledge and authority of the 3rd third party. That the 3rd third party was the owner of the motor cycle and should the 2nd third party be found liable, then the 3rd third party ought to be found vicariously liable for the actions and/or omissions of the 2nd third party.

The 3Rd Third Party’s Defence 11. The 3rd third party entered appearance on 6/1/2021 and filed a statement of defence on 8/1/2021. The 3rd third party denied the allegations in the plaint and defences by the other parties. The 3rd third party averred that at the time of the alleged accident, she was not in control or possession of the motor cycle. That the motor cycle was had been taken by the 2nd third party who was on a frolic against the wishes of and without the authority of the 3rd third party and as such, the 3rd third party could not be held vicariously liable for the acts and omissions of the 2nd third party. The 3rd third party prayed for dismissal of the plaintiff’s suit.

The Plaintiff’s case. 12. The plaintiff testified and called two other witnesses in a bid to prove her case. The plaintiff adopted her statement filed in court as part of her evidence in-chief. Her evidence was that ON 1/8/2018 she was a pillion passenger aboard motor cycle registration number KMED 6X2C along Kibwezi-Kisayani road which was under construction. That there was a diversion and depression on the road. The plaintiff testified that just after the depression, she saw motor vehicle registration number KCG 0X0R Pick-up being driven at a very high speed from the opposite direction. That the rider of the motor cycle she had boarded moved off the road to give way to the Pick-up but the Pick-up veered off its lane and rammed into the motor cycle. The plaintiff stated that she sustained injuries. She was taken to hospital for treatment. The plaintiff produced documents in support of her case.

13. PW 2 Sergeant Benson Muema confirmed that the accident was reported at MakinduTraffic Base on 1/8/2019. He further confirmed that the accident involved motor vehicle registration number KCG 0X0R and motor cycle registration number KMED 6X2C. The witness produced a police abstract on the accident in evidence. PW 3 Doctor Esther Nzomo testified that she examined the plaintiff following the accident. The witness confirmed that the plaintiff was injured as a result of the accident. She produced the medical report that she had prepared.

The 1st and 2nd Defendant’s Case 14. The defendants called the 1st defendant in their defence. The 1st defendant adopted his statement filed in court as part of his evidence in-chief. The 1st defendant admitted that on the material day, he was driving motor vehicle registration number KCG 0X0R along the Kibwezi-Kitui road and was headed towards Kitui general direction. The 1st defendant stated that motor cycle registration number KMED 6X2C from the opposite direction was being driven at a very high speed and the same had three pillion passengers. That the motor cycle suddenly swerved to the rightful lane of the 1st defendant’s motor vehicle and rammed into the front side of the motor vehicle. The 1st defendant blamed the rider of the motor cycle for the accident. That the rider of the motor cycle was not licensed and his motor cycle was not insured. The 1st defendant alleged that the rider of the motor cycle was subsequently charged with the offence of careless driving. The 1st defendant prayed for dismissal of the case and for the third parties to be held liable for the accident.

The 1st Third Party’s Case 15. The 1st Third party did not call any witness in support of its case.

The 2nd Third Party’s Case 16. The 2nd third party did not attend court to testify but called a witness. This was one Faith Nduku Mwanzia. The witness adopted her statement filed in court as part of her evidence in- chief. Her evidence was that she was a pillion passenger aboard motor cycle registration number KMED 6X2C on the date and time of the accident. Her testimony was similar to that of the plaintiff. She blamed the driver of motor vehicle registration number KCG 0X0R for the accident.

The 3rd Third Party’s Case 17. The 3rd third party testified in her defence. She adopted her statement filed in court as part of her evidence in-chief. The witness confirmed that she was the owner of the accident motor vehicle, having bought it from the 1st third party. Her testimony was that on the material day, the accused person who is her family friend and neighbour appeared and requested the 3rd third party to lend him her motor cycle so that he could run an errand. The 3rd third party declined the requested stating that the motor cycle was not insured. The 3rd third party left briefly and while she was away from where the motor cycle was, she heard the sound of a motor cycle being driven away from her home. She realised that it was the 2nd third party who was driving away with her motor cycle. The 3rd third party was later informed that her motor cycle had been involved in an accident. She rushed to the scene and confirmed the position.

Facts Not In Dispute: 18. From the evidence of all the parties, the following facts are not in dispute:1. A road traffic accident occurred on 1/8/2018 at Ukuno area along Kibwezi-Kitui road;2. The accident involved motor cycle registration number KMED 6X2C and motor vehicle registration number KCG 0X0R;3. The plaintiff was a pillion passenger on the motor cycle and was thus involved in the accident;4. The 1st defendant was the driver of motor vehicle registration number KCG 0X0R at the material time;5. The 2nd third party was the rider of motor cycle registration number KMED 6X2C at the material time;6. The 3rd third party was the owner of the accident motor cycle at the material time;7. At the time of accident, the 1st third party had sold the motor cycle to the 3rd third party.

Main Issues For Determination 19. In my opinion, the main questions or issues for determination are as follows:i.Who between the 1st defendant and the 2nd third party is to blame for the accident and thus liable?ii.Whether the owners of the motor cycle and motor vehicle are vicariously liable for the acts and omissions of the respective drivers;iii.Whether the plaintiff sustained injuries, loss and damage as a result of the alleged accident;iv.Whether the plaintiff is entitled to damages and if so, the nature and quantum thereof;v.Who should bear the costs of this suit?

The Plaintiff's And 2Nd Third Party’s Submissions 20. The plaintiff and 2nd third party filed joint written submissions upon closure of the hearing. The plaintiff relied on her evidence on record and submitted that not wearing a reflective jacket or being an excess passenger had no bearing on what caused the accident. That being a passenger, she could not have contributed or avoided the accident. It was argued on behalf of the 2nd third party that the fact that the motor cycle was not insured or that the 2nd third party was not licensed did not contribute to the accident. The 2nd third party submitted that the allegation that it was the motor cycle which rammed into the motor vehicle was not pleaded in the defendants’ defence.

21. It was argued that the 1st defendant was not a truthful witness as he contradicted himself during his testimony. It was further argued that the outcome of the alleged traffic case against the 2nd third party was unknown and no proceedings of the same were produced in evidence. That just because a person is charged does not mean that they are to blame for the accident. The plaintiff and 2nd third party submitted that every driver is assumed to be driving/riding with the authority of the owner of the motorcycle unless the opposite is proved. That the 3rd third party did not report to the police that the 2nd third party had taken her motor cycle without her permission. The plaintiff and 2nd third party contended that the latter had authority of the 3rd third party to ride the motor cycle. That the issue of lack of authority was brought up three years later after the accident.

22. It was further submitted that the 3rd Third Party contradicted her own defence and was thus not a reliable witness. That in her defence, she pleaded that the rider was not, is not and never been her agent, servant and/or employee while at trial she admitted the 2nd third Party was ridding the motorcycle even before the accident and Paul Muli the rider that called her after the accident was aware the 2nd third Party was ridding the motorcycle on her behalf. It was argued that the averment that the 2nd third party was on a frolic of his own was an afterthought intended to aid the 3rd third party to escape liability.

23. That no evidence was brought to court to show the rider of the motor cycle was carelessly and negligently riding the motor cycle. The plaintiff and 2nd third party contended that the evidence on record is categorical that the accident herein was caused by the 1st defendant. The plaintiff and 2nd third party urged the court to find the defendants liable for the accident and that in the unlikely event the court finds the 2nd third party liable, then the 3rd third party should be held vicariously liable. The plaintiff and 2nd third party relied on the following authorities:a.Secilina Gatavi Peter v Jasper Gitonga Mugambi [2020] eKLR;b.Kennedy Okongo Oganda & another v Hamisi Misa Maloba (Suing as the personal representative and Administrator of the Estate of Hassan Luka Hamisi [Deceased]) [2020] eKLR;c.Hashi Hauliers & another v Meshack Kipkorir [2020] eKLR;d.Baro Ngo Sevelius Yophen v Jared Ndemo [2020] eKLR;e.Janet Kathambi v Charity Kanja Njiru [2021] eKLR;f.Madara & 2 others v Chite & another (Civil Appeal 111 of 2022) [2023] KEHC 24270 (KLR) (24 October 2023) (Judgment;g.EWO (suing as the next friend of a minor COW) v Chairman Board of Governors-Agoro Yombe Secondary School [2018] eKLR;h.Techard Steam & Power Limited v Mutio Muli & Mutua Ngao [2019] eKLR;i.Bernard Philip Mutiso v Tabitha Mutiso [2022] eKLR;j.Caroline Endovelia Mugayilwa v Lucas Mbae Muthara [2016] eKLR.

21. On quantum, the plaintiff proposed a sum of Ksh. 800,000/= in general damages and relied on the following authorities:1. Lilian Wanja v Cyprian Mugendi Igonga & 2 others [2016] eKLRThe plaintiff and appellant in the appeal sustained injuries to her head, face, left side of the chest, right wrist and elbows, both knees left hip and the dislocation of the pelvis/hip. She was admitted in hospital for four (4) days. The trial court awarded Ksh. 200,000/= in general damages on 14/2/2012. On appeal, the award was enhanced to Ksh. 500,000/= on 1/9/2016.

2. Njora Samuel v Richard Nyang’au Orechi [2018] eKLRThe plaintiff and respondent in the appeal sustained a closed fracture right 5th Metatarsal. The trial court awarded Ksh. 500,000/= on 3/8/2016. On appeal, the award was affirmed on 3/10/2018.

The Defendants’ Submissions 22. On 3/3/2025, counsel for the defendants informed the court that they had filed submissions. I have checked the record and it appears that no submissions were filed by the defendants. The physical file does not have the submissions and the CTS indicates that the defendants’ firm attempted to file an unknown document on 3/3/2025 but the same was not successful as the table indicates a zero to show that no document was filed.

Submissions By The 1St Third Party 23. The 1st third party filed submissions. The submissions were brief but with quotations from authorities whose copies were not annexed. The argument by the 1st third party is that they had sold the motor vehicle to the 3rd third party as at the time of the accident and had not relationship whatsoever with the 3rd third party. They urged the court to dismiss the claim with costs.

Submisssions By The 3Rd Third Party 24. No submissions were filed by the 3rd third party.

Analysis And Determination 25. I have carefully considered the evidence on record and given due regard to the submissions made by the parties.

Liability 26. As already indicated, there is no dispute as to the occurrence of the accident involving motor vehicle registration number KCG 0X0R and motor cycle registration number KMED 6X2C. It is also not in dispute that the two motor vehicles collided on the road. The evidence on record indicates that the road was under construction and as such, there were no clearly demarcated lanes. There are two versions as to how the accident occurred. The version given by the plaintiff and the 2nd third party’s witness was that it was the other motor vehicle which veered to the rightful lane of the motor cycle and rammed into it. On the other hand, the 1st defendant blamed the 2nd third party for veering to his rightful lane and ramming into his motor vehicle. The two conflicting versions were given by eye witnesses to the accident.

27. It is trite law that it is not enough to adorn the plaint with particulars of negligence. The plaintiff must adduce evidence to prove such particulars of negligence and it is from the evidence that the court can make a finding on liability. The above position appears to be anchored on the provisions of sections 107 and 1X9 of the Evidence Act which basically provide that the burden of proof lies on the person who alleges the existence of facts upon which he desires the court to give judgment in his favour. In the case of Kirugi & Another v Kabiya & 3 Others [1987] KLR 347, the Court of Appeal held thus:“The burden was always on the plaintiff to prove his case on the balance of probabilities even if the case was heard on formal proof.”

28. Which version should the court go by? In a bid to resolve the issue, I will highlight a few authorities. In the case of Jonathan Njenga v Hassan Faraj Aboud [1987] KLR 1, the Court of Appeal in dismissing a suit in which there was a collision between two motor vehicles whereupon one of the drivers involved had sued the other stated as follows in a majority opinion, as per Nyarangi JA:“.......impression alone does not justify the finding that the defendant therefore disregarded the rules and courtesies for safe driving. There has to be reliable evidence of actual carelessness in his manner of driving on the part of the defendant to support such a finding. Here, there was no independent eye-witness because the police officer who arrived at the scene and observed and drew a sketch plan gave oral evidence on the damage to the Toyota and its position at the scene and no more. The witness did not produce the sketch plan. The resulting factual position before the Judge in my judgment was an irreconcilable conflict between the parties upon which the Judge could not reasonably infer that the defendant's car hit the Toyota or that the defendant was driving carelessly. PW 2 should have produced the sketch plan. No reasonable explanation was offered for the failure to produce the plan. Without the plan the Judge could not have anything like a fair picture of what happened or might have happened ".

29. Another case for consideration is that of Stephen Murimi Kibuchi v A.M Sunkar [1998] eKLR (Nairobi HCCC No. 1301 of 1998) where Ang'awa J, while dismissing a suit held as follows:“The plaintiff should have called an eye witness to the accident and or even the police officer who investigated the accident. If there was a subordinate court case against the defendant, the proceedings of the said lower court would have been produced as proof on liability and negligence (See Section 34 of the Evidence Act). I have unfortunately only the plaintiff’s evidence who confirms that he did not witness the accident ".

30. Moving to what would appear to be a different school of jurisprudence, in the English case of Baker v Market Harborough Co-operative Society Ltd [1953] 1 WLR 1472, there was a collision in the centre of the road between two vehicles driven in opposite directions. In two hearings, judges had taken different views of the facts. The court was sympathetic to the judge who had found that the cause of the accident was so speculative on the meagre facts available that the plaintiff, who was an innocent third party, had failed to prove her case. However, the court took the view of the other judge that blame should be apportioned equally as between the two drivers. Romer L J stated that a finding to that effect was "the reasonable and probable inference to draw from the facts as found". This reasoning was adopted in the Kenyan case of Lakhamshi v Attorney General [1971] EA 118 in which Spry V P stated that where two vehicles collide in the middle of the road and there is no explanation, both the drivers should be held equally liable. If one is negligent in driving over the centre of the road, the other is also negligent for not taking any evasive action. A similar finding was made in the case of Caroline Anne Njoki Mwangi v Paul Ndung'u Muroki [2004] eKLR.

31. It was alleged that the Traffic police investigated the accident and caused the 2nd third party to be charged after finding him to blame for the accident. Apart from an indication in the police abstract that the 2nd third party was charged and that the matter was pending before court, the outcome of the traffic case remains unknown. The proceedings and judgment, if any, in the traffic case were not produced in evidence. Furthermore, apart from relying on the police abstract, PW 2 did not produce the police file in respect of the accident. He did not produce material evidence such as the sketch plan which would have shown the point of impact and probably evidence of skid marks to indicate high speed and the position of the motor vehicles right after the accident. For an unknown reason, the 2nd third party was not called to testify. He appears to have relied on the testimonies of his pillion passengers yet he was better placed, in my view, to explain how the accident occurred.

32. In Lakhamshi's case (supra), Spry VP observed in part as follows:“It is not settled law in East Africa that where the evidence relating to a traffic accident is insufficient to establish the negligence of any party, the court must find the parties equally to blame.....I am inclined to think that the position is different. I personally find it difficult to see how a party can be found guilty of negligence if there is no evidence that he was in fact negligent and if negligence on his part cannot properly be inferred from the circumstances of the accident. This problem does not arise on the present appeal and it is unnecessary for us to decide it.”

33. The cases of Baker and Lakhamshi were considered and analysed by the Court of Appeal in the case of Abbay Abubakar Haji Patuma Ali Abdulla v Freight Agencies Ltd [1984] eKLR in which there was an alleged collision between two motor vehicles caused by cows which were crossing the road. The plaintiff's case was dismissed by the High court. On appeal, the Court of Appeal unanimously affirmed the order of dismissal. Kneller JA observed as follows:“A judge is under a duty when confronted by conflicting evidence to reach a decision on it. In the case of most traffic accidents it is possible on a balance of probabilities to conclude that one other party was guilty or both parties were guilty of negligence. In many cases as for example where vehicles collide near the middle of a wide straight road in conditions of good visibility with no courses, there is in the absence of any explanation, an irresistible inference of negligence on the part of both drivers, because if one was negligent in driving over the centre of the road, the other must have been negligent in failing to take evasive action. Although it is usually possible, but nevertheless often extremely difficult, to apportion the degree of blame between two drivers both guilty of negligence, yet where it is not possible it is proper to divide the blame equally between them. Where, however, there is a lack of evidence, the position is different. It is difficult to see how a party can be found guilty of negligence if there is no evidence that he was in fact negligent and if negligence on his part cannot properly be inferred from the circumstances of the accident". (Emphasis supplied)

34. The court further held that where it is proved by evidence that both parties to the accident are to blame and there is no means of making a reasonable distribution, the blame can be apportioned equally on each. In this respect, the court considered the case of Baker (supra). It was the further holding of the court that the position must however be different where there is no evidence to establish that any party was negligent. In that case it cannot be right to apportion blame there being no evidence on which apportionment could be based. In making that finding, the court considered the case of Lakhamshi in which Spry V P stated that it is difficult to appreciate how a party can be held to have been negligent if there is no evidence that he was in fact negligent.

35. In the instant case, there is no evidence to show that the plaintiff was negligent and thus caused or contributed to the accident. There is also no evidence to show that the accident was as a result of unforeseeable circumstances or an act of God. It is obvious that the accident was due to human error. The difficulty lies in determining who between the 1st defendant and the 2nd third party was to blame for the accident. In order to make such determination, it is my view that a sketch plan and measurements drawn by the police officer who investigated the accident would have been of help. With such evidence, the court would have been able to tell the point of impact. With the conflicting oral testimony on how the accident occurred and in the absence of material evidence to determine the point of impact, it is my view that this is a proper case to apportion liability equally between the two drivers. Consequently, I find the 1st defendant and the 2nd third party equally to blame. For avoidance of doubt, liability is apportioned at 50% against the 1st defendant and 50% against the 2nd third party.

36. Vicarious liability is a form of secondary liability that arises under the common law doctrine of agency, respondeat superior, the responsibility of the superior for the acts of their subordinate or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator. The owner of a motor vehicle can be held vicariously liable for negligence committed by a person to whom the car has been lent, as if the owner was a principal and the driver his or her agent, if the driver is using the car primarily for the purpose of performing a task for the owner.

37. In the case of Morgan v Launchbury [1972] ALL ER 606, it was held, inter alia, that:“To establish agency relationship it is necessary to show that the driver was using the car at the owner’s request express or implied or in its instruction and was doing so in the performance of the task or duty thereby delegated to him by the owner.”

38. Similarly, In Kaburu Okelo & Partners v Stella Karimi Kobia & 2 Others [2012] eKLR the Court of Appeal held that:“Vicarious liability arises when the tortious act is done in the scope of or during the course of one’s employment or authority.”

39. Where a motor vehicle is driven by a person other than the owner, there is a rebuttable presumption that the driver was acting as an agent of the owner of the motor vehicle. In the case of Kenya Bus Services Ltd v Humphrey [2003] KLR 665; [2003] 2 EA 519, the Court of Appeal cited Kansa v Solanki [1969] EA 318 wherein it was held that:“Where it is proved that a car has caused damage by negligence, then in the absence of evidence to the contrary, a presumption arises that it was driven by a person for whose negligence the owner is responsible ( See Bernard V Sully [1931] 47 TLK 557. This presumption is made stronger or weaker by the surrounding circumstances and it is not necessarily disturbed by the evidence that the car was lent to the driver by the owner as the mere fact of lending does not of itself dispel the possibility that it was still being driven for the joint benefit of the owner and the driver.”

40. In the authority of Nancy Ayemba Ngaira v Abdi Ali [20X0] eKLR, Ojwang, J ( as he then was) observed that:“There is no doubt that the registration certificate obtained from the Registrar of motor vehicles will show the name of the registered owner of a motor vehicle. But the indication thus shown on the certificate is not final proof that the sole owner is the person whose name is shown. Section 8 of the Traffic Act is fully cognizant of the fact that a different person, or different other persons, may be the de facto owners of the motor vehicle – and so the Act has an opening for any evidence in proof of such differing ownership to be given. And in judicial practice, concepts have arisen to describe such alternative forms of ownership: actual ownership; beneficial ownership; and possessory ownership. A person who enjoys any of such other categories of ownership, may for practical purposes, be much more relevant than the person whose name appears in the certificate of registration; and in the instant case at the trial level, it had been pleaded that there was such alternative kind of ownership."

41. The evidence on record indicates the 2nd defendant was the owner of motor vehicle registration number KCG 0X0R at the material time. There is no contrary evidence. As such, the 2nd defendant is held vicariously liable for the negligence of the 1st defendant. There is sufficient evidence to prove that the 1st third party had sold motor cycle registration number KMED 6X2C to the 3rd third party as at the time of accident. The 3rd third party admitted this fact. Consequently, no liability can be attributed to the 1st third party. The 3rd third party filed a defence and also testified that the 2nd third party used the motor cycle without her permission. She explained the circumstances under which the 2nd third party took the motor cycle from her home.

42. From the testimony of the 3rd third party, it would appear that the 2nd third party was not her employee nor was he driving the motor cycle for the benefit of the 3rd third party. He had no authority from the 3rd third party to drive the motor cycle. The submissions made by the plaintiff and the 2nd third party to allude vicarious liability on the 3rd third party cannot take the place of evidence. Only evidence from the 2nd third party could rebut that of the 3rd third party. It does not matter that the 2nd third party used to drive or ride the motor cycle before and after the accident. What matters is whether he had such authority on the day of the accident. Despite filing and amending his defence thrice, the 2nd third party did not attend court to rebut the evidence of the 3rd third party. I see no difficulty in finding that the 2nd third party was on a frolic of his own at the time of accident. In the circumstances, the 3rd third party cannot be held vicariously liable for the negligence of the 2nd third party.

Quantum 43. The medical evidence on record indicates that the plaintiff sustained the following injuries:i.Fracture of the right big toe; andii.Soft tissue injuries on the right knee.

44. There is no contrary evidence. I find that there is sufficient evidence to prove that the plaintiff sustained injuries as a result of the accident. Given the fact that the defendants and 2nd third party have been held liable for the accident, the plaintiff is thus entitled to damages as against them.

45. It is well established that the assessment of quantum of damages in a claim for general damages is a discretionary exercise and that such discretion must be exercised judicially having regard to the facts of the case within the context of existing legal principles. A case is decided purely on its own peculiar facts. This Court has to bear in mind the principles that guide assessment of damages as espoused in West (HI) and Sons Ltd v Shepherd [1964] AC 326 where Lord Morris said:“But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common constant, awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible, comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional”.

46. I am also guided by Lord Denning’s decision in Kim Pho Choo v Camden & Islingtom Area Health Authority, [1979] 1, ALL ER 332 which was adopted in the case of Nancy Oseko v Board of Governors Masai Girls High School [2011] eKLR where Wendoh, J stated that:“In assessing damages, the injured person is only entitled to what is in the circumstances, a fair compensation, for both the plaintiff and the defendant. …………………..the plaintiff cannot be fully compensated for all the loss suffered but the court should aim at compensating the plaintiff fairly and reasonably but in the process should not punish the defendant.”

47. The following principles are germane in assessing damages for personal injury claims:i.An award of damages is not meant to enrich the victim but to compensate such a victim for the injuries suffered;ii.The award should be commensurate to the injuries suffered;iii.Awards in decided cases are mere guides and each case should be treated on its own facts and merit;iv.Where awards in decided cases are to be taken into consideration then the issue of or element of inflation has to be taken into consideration;v.Awards should not be inordinately too high or too low.

48. guided by the above principles, I proceed to assess and award the damages payable as follows:SUBPARAGeneral Damages for pain suffering and loss of amenities

49. I have considered the injuries sustained by the plaintiff. The plaintiff was treated as an outpatient. Her injuries were classified as harm by the doctor. The plaintiffs in the first authority relied upon by the plaintiff herein sustained more severe injuries whereas the one on the second authority sustained injuries comparable to the plaintiff herein. I have, on my own, further considered the following authority:Modern Coast Coaches Ltd v Ouya alias Violet Ouya Ongachi [2022] KEHC 13482 (KLR)

50. The plaintiff and respondent in the appeal sustained a fracture of proximal phalanx of the right big toe. The trial court awarded Ksh. 540,000/= on 26/11/2021. On appeal, the award was affirmed on 29/9/2022.

51. Having the above principles in mind and having considered the injuries sustained by the plaintiff herein, as well as the vagaries of inflation, I find that an award of Ksh. 600,000/= in general damages would suffice. I award the same.

Special damages 52. The plaintiff pleaded special damages as follows:a.Medical report...........................Ksh. 2,500/=b.Motor vehicle search………………..Ksh. 550/=

53. It is trite law that special damages must be specifically pleaded and strictly proved. In Nizar Virani t/a Kisumu Beach Resort v Phoenix of East Africa Assurance Co. Ltd, the court said: -“It has time and again been held by the Court in Kenya that a claim for each particular type of special damage must be pleaded"

54. In Ouma v Nairobi City Council [1976] KLR 304 after stressing the need for a plaintiff in order to succeed on a claim for specified damages, Chesoni J (as he then was) quoted in support the following passage from Bowen L. J’s Judgment on page 532 and 533 in Ratcliffe v Evans [1832] 2Q.B. 524 an English leading case on pleading and proof of damage:“The character of the acts themselves which produce the damage, and the circumstances under which those acts are done, must regulate the degree of certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.”

55. Only the claim for motor vehicle search was supported by a receipt. I therefore award Ksh. 550/= only as special damages.

Disposition 56. In summary, I find that the plaintiff has proven her case on a balance of probabilities. Consequently, I make the following awards:1. General damages for pain, suffering and loss of amenities............Ksh. 600,000/=2. Special damages.....................................................................................Ksh. 550/=Total.......................................................................................................Ksh. 600,550/=

57. The defendants shall pay Ksh. 300,275/= whereas the 2nd third party shall a similar amount. The plaintiff is also awarded interest on the damages as well as costs of the suit. The guiding principles in respect of interest are set out in section 26 of the Civil Procedure Act which provides that:(1)Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit.(2)Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have ordered interest at 6 per cent per annum.”

58. In the case of Jane Wanjiku Wambui v Anthony Kigamba Hato & 3 others [2018] eKLR, the court stated that:First, at all times a trial court has wide discretion to award and fix the rate of interests provided that the discretion must be used judiciously. Given this discretion, an appellate Court is, therefore, enjoined to treat the original decision by a trial court with utmost respect and should refrain from interference with it unless it is satisfied that the lower court proceeded upon some erroneous principle or was plainly and obviously wrong. See New Tyres Enterprises Ltd v Kenya Alliance Insurance Company Ltd [1988] KLR 380.

59. Second, Under Section 26(1) of the Civil Procedure Act, the Court has discretion to award and fix the rate of interests to cover two stages namely:a.The period from the date the suit is filed to the date when the Court gives its judgment; andb.The period from the date of the judgment to the date of payment of the sum adjudged due or such earlier date as the court may, in its discretion fix.”

60. Odoki, Ag. JSC, writing for the majority of the Supreme Court in the Ugandan case of Omunyokol Akol Johnson v Attorney General (CIVIL APPEAL NO.6 of 2012, UGSC 4 (8th April 2015) stated in part, as follows:It is well settled that the award of interest is in the discretion of the court. The determination of the rate of interest is also in the discretion of the court. I think it is also trite law that for special damages the interest is awarded from the date of the loss, and interest on general damages is to be awarded from the date of judgment………Therefore, the trial judge should have awarded the appellant interest on general damages at the court rate from the date of judgment.” (Emphasis supplied)

61. From the foregoing expositions of the law on this point, it is clear that much as the award of interest is discretionary, interest rates on special damages should be with effect from the date of the loss till payment in full while with regard to general damages this should be from the date of judgement as it is only ascertained in the judgement-see Jane Ovuyanzi Raphael (Suing as Legal Representative of Estate of Japheth Amaayi v Salina Transporters [2020] KEHC 618 (KLR).

62. Consequently, interest on general damages shall accrue at court rates from the date of judgment/decree until payment in full and on special damages, from the date of filing suit to the date of judgment/decree. The costs payable to the plaintiff shall be shared equally between the defendants on one hand and the 2nd third party on the other hand. For avoidance of doubt, the claims against the 1st and 3rd third parties are dismissed with no orders as to costs. I say so because the defendants cannot be blamed for joining the 1st third party since it was the registered owner of the motor cycle that was being driven by the 2nd third party and there is no way they could have known that the motorcycle had been sold to the 3rd third party. It was also proper for the 1st third party to join the 3rd third party since she was the true owner of the said motor cycle.

Test Suit. 63. The record indicates that the court selected this matter as a test suit on the issue of liability. Therefore, the finding on liability herein shall apply to the other matters in the same series being Makindu SPMC civil case number 57 of 2019 and Makindu SPMC civil case number 152 of 2019.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 26TH DAY OF MAY, 2025. Y.A SHIKANDASENIOR PRINCIPAL MAGISTRATE.