https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/315

Kinyua (Suing as a Legal Representative of the Estate of Benson Kinoti Kithure (Deceased)) v Muhangi & 2 others (Civil Case E018 of 2024) [2026] KEMC 315 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KEMC 315 (KLR) Republic of Kenya In the Nanyuki Law Courts Civil Case E018 of 2024 D Ngayo, SRM July 13, 2026 Between Patrick Kinyua (Suing as a Legal Representative of the Estate of Benson Kinoti Kithure (Deceased)) Plaintiff and David Kungu Muhangi 1st Defendant Kelvin Mugambi Nyaga 2nd Defendant Sila Shadrack Munene 3rd Defendant Ruling A. Introduction & Factual Background: 1.The motion before me is dated 4th February, 2026 wherein the 1st Defendant seeks to have his name struck out from the suit herein. In support of his application, the 1st Defendant averred that the suit arose from a road traffic accident that occurred on 11th April, 2023 involving Motor Vehicle Registration No. KCR 787F. He denied being the legal or beneficial owner of the said motor vehicle at the time of the accident, stating that although he had initially owned it, he sold it to the 2nd Defendant under a sale agreement dated 4th March, 2023 for Kshs. 445,000. He further stated that possession of the vehicle was handed over to the 2nd Defendant on the same date, after which the process of transferring ownership was undertaken and the vehicle was subsequently registered in the 2nd Defendant's name. 2.The 1st Defendant further contended that the sale agreement expressly provided that any claims or liabilities arising from the motor vehicle after the sale would not attach to him. He also stated that, following the sale, he instructed his insurer on 6th March, 2023 to cancel the insurance policy covering the vehicle. 3.He therefore maintained that he was neither the legal nor beneficial owner of the motor vehicle at the time of the accident. He further denied driving the vehicle or employing, authorizing, or controlling the driver involved in the accident, asserting that the driver was not his servant, agent, or employee. Consequently, he denied any basis for vicarious liability and contended that he had been improperly joined in the proceedings. On that basis, he urged the court to strike out the suit against him. 4.On 30th March, 2026, the 2nd Defendant stated that he was not opposed to the application, and would therefore not be filing a response to it. 5.On his part, the Plaintiff opposed the application by filing a Replying Affidavit sworn on 24th February, 2024 wherein he contended that the application was misconceived, premature, and devoid of legal merit. The Plaintiff argued that although the 1st Defendant alleged that he had sold Motor Vehicle Registration No. KCR 787F before the accident, the records annexed to the application confirmed that the vehicle had previously been registered in his name. The Plaintiff further maintained that the alleged sale agreement did not, by itself, absolve the 1st Defendant from third-party liability arising from the use of the motor vehicle. 6.The Plaintiff also contended that the 1st Defendant had failed to provide any documentary evidence to substantiate his assertion that the insurance policy covering the vehicle had been cancelled, including proof that the insurer had effected the cancellation or that the requisite statutory notice under Section 10(4) of the Insurance (Motor Vehicles Third Party Risks) Act had been issued. Consequently, the Plaintiff maintained that, in the absence of such evidence, the 1st Defendant remained the insured at the time of the accident and could not avoid statutory third-party liability. 7.The Plaintiff further argued that the issues of ownership, beneficial ownership, possession, control, insurance status, and vicarious liability were contested questions of fact that required determination upon a full hearing. It was therefore contended that striking out the 1st Defendant at the interlocutory stage would be inappropriate, as several triable issues remained unresolved, including whether the alleged sale had been perfected before the accident, whether the 1st Defendant retained an insurable interest, whether the statutory requirements for cancellation of the insurance policy had been complied with, and whether liability could still attach under statutory or vicarious principles. Accordingly, the Plaintiff urged the court to dismiss the application and allow the disputed issues to be determined at trial. B. Issues For Determination: 8.Parties filed written submissions on the application – which the court has had occasion to scrupulously read and consider. Therefore, having carefully considered the pleadings, the Notice of Motion dated 4th February, 2026, the written submissions filed, as well as the legal principles bearing upon the application, I am of the considered view that the sole issue for determination is whether the name of the 1st Defendant should be struck out as a party in this suit. C. Analysis & Determination Of The Issue: 9.With regard to joinder of parties, Order 1 rule 9 of the Civil Procedure Rules states that no suit shall be defeated for misjoinder or non-joinder of parties and requires that the court deals with the matter in controversy, so far as regards the rights and interests of the parties actually before it. On the other hand, Order 1 Rule 10 (2) of the Civil Procedure Rules also provides that: -“The court may at any stage of the proceedings, either upon or without the application of either part, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendants, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.” 10.The question that falls for determination therefore is whether the 1st Defendant is a necessary party to this suit and if so, whether any cause of action is disclosed against it. The power to strike out a party from a suit should be approached with caution. This court has to assess whether or not there is a prima facie case against the 1st Defendant. In this case, the 1st Defendant's principal argument is that ownership had already passed to the 2nd Defendant before the accident. While the sale agreement exhibited tends to support that assertion, it cannot be said, at this interlocutory stage, that the issue of ownership has been conclusively settled. 11.Further, 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 of the vehicle." 12.The provision creates a rebuttable presumption. Consequently, although production of a sale agreement or evidence of beneficial ownership may ultimately rebut the statutory presumption, whether that burden has in fact been discharged is ordinarily a matter requiring evidence and evaluation at trial. In this regard, I am aware that the Court of Appeal in Samuel Mukunya Kamunge –Vs- John Mwangi Kamuru, recognized that ownership of a motor vehicle is not proved exclusively by a certificate of official search and that ownership may equally be established through other evidence. in that case, the court held in part as follows:“It is true that a certificate of search from the Registrar of Motor vehicles would have shown who was the registered owner of motor vehicle according to the records. That however, is not conclusive proof of actual ownership of the motor vehicle as section 8 of the Traffic Act provides that the contrary can be proved. This is the recognition of the fact that often times motor vehicles change hands but the records are not amended. 13.With the above authority in mind, whether such evidence sufficiently rebuts the statutory presumption remains a factual issue for determination upon hearing all the evidence. further, whether the insurance policy remained in force at the time of the accident, whether statutory requirements relating to cancellation were complied with, and the legal consequences thereof are all matters requiring evidence. Those questions cannot properly be determined merely from affidavit evidence. 14.Similarly, the questions whether possession had effectively passed to the purchaser, whether beneficial ownership had crystallized before the accident, whether the Applicant retained any control over the vehicle, and whether any liability may still attach either under statutory provisions or the doctrine of vicarious liability are all issues which call for a full evidential inquiry. I think that to ascertain this at this stage the court would be required to go into the rigorous exercise of trying to determine whether the Plaintiff has a proper case against the 1st Defendant by assessing the evidence in place. This in my view is premature as evidence can only be tendered at the trial. I am of the view that the merits and demerits of the claims against the 1st Defendant cannot be summarily decided through this application. 15.In so holding, I am guided by the holding of Madan. J.A in the case of DT Dobie and Company (K) Ltd vs Joseph Mbaria Muchina& Another wherein he stated that:“The power to strike out should be exercised only after the court has considered all the facts, but it must not embark on the merits of the case itself as this is solely reserved for the trial judge. On an application to strike out pleadings, no opinion should be expressed as this would prejudice fair trial and would restrict the freedom of the trial judge in disposing the case.” 16.At this stage, the court is not called upon to determine the merits of the Plaintiff's claim against the 1st Defendant. Rather, the court need only determine whether there exists an arguable case warranting investigation at trial. 17.Consequently, I am unable to conclude that the 1st Defendant has been improperly joined within the meaning of Order 1 Rule 10(2) of the Civil Procedure Rules. His continued participation in the proceedings may well be necessary for the complete and effectual determination of all the questions arising in the suit. For these reasons, I decline the 1st Defendant’s prayer to strike out his name from this suit, and I accordingly dismiss his application dated 4th February, 2026. The costs of the application shall abide the outcome of the main suit. RULING SIGNED, DATED AND DELIVERED IN VIRTUAL COURT AT NANYUKI THIS 13TH DAY OF JULY, 2026.HON. DANIEL NGAYO.,SENIOR RESIDENT MAGISTRATE.