Pentagon Agencies Ltd v Khatemba (Civil Appeal E092 of 2025) [2026] KEHC 12601 (KLR) (28 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPEAL NO. E092 OF 2025** **PENTAGON AGENCIES LIMITED ........................................... APPELLANT** **VERSUS** **DOUGLAS KITUI KHATEMBA ............................................. RESPONDENT** ***(Being an appeal from judgement of the Honourable G. Omodho (PM) delivered on 29th January 2025 in Milimani CMCC No. E3452 of 2020)*** **JUDGEMENT** 1. In his plaint dated 17.7.2020 the respondent averred that on or about 6th November, 2019, he was lawfully travelling as a pillion passenger on motor bike registration number KMEC6397 along Uhuru Highway when the 2nd defendant Moses Osilo negligently, recklessly and carelessly rode the said motor cycle causing it to roll as a result which the plaintiff sustained severe bodily injuries, endured and continues to endure pain and has suffered loss and damages. He, therefore, sought for judgement against the appellant (1st Defendant) and 2nd Defendant for general damages, pain and suffering, special damage of Ksh.10,050, costs and interest. 2. The 2nd defendant failed to enter appearance and file defence and therefore, interlocutory judgement was entered against him. The appellant (1st Defendant), however, filed amended statement of defence dated 8th April, 2024 denying the plaintiff’s claims. The appellant also averred that the subject motor cycle was still in its store on 6.11.2019 and had not been sold not to any person or used on the road. Further, the appellant averred that if the subject accident herein occurred the same was solely and or substantially caused by the plaintiff’s own negligence. 3. In her judgement the learned trial magistrate found the appellant alluded that at one point the subject motor cycle herein was released from their stores to a local vendor who later returned it as unsold asset. Being the registered owner, the trial magistrate concluded, the 1st defendant/appellant being the registered owner remained vicariously liable for harm caused by the motor cycle in its ordinary use. 4. The trial magistrate also held that the rider of the subject motor cycle herein failed to control the motor cycle and was therefore, 100% liable for the subject accident herein and the appellant vicariously liable. The court, further, awarded the respondent general damages of Ksh.500,000 and special damages of Ksh.6,500 proved by way of receipts. 5. Being dissatisfied with the judgement of the trial the appellant preferred this appeal. The appeal is based on 5 grounds of appeal which can be summarised as follows: 6. That the trial magistrate erred in law and fact by finding that the motor cycle owned by the appellant herein was the same motor cycle ridden by the 2nd defendant when the subject accident herein occurred despite glaring and apparent discrepancies on the make-one being ‘boxer’ while the other being ‘sanya.’ 7. That the learned trial magistrate erred in law and fact in finding that the rider was liable for the subject accident herein though both the abstract and the testimony of the police officer herein indicated that the matter was still under investigation. 8. That the trial magistrate erred in law and fact in holding the appellant vicariously liable for the subject accident herein despite there being no evidence of agency and or employer-employee relationship between the appellant and the rider of the motor cycle. 9. In his evidence, PW1 the respondent, recalled that on 6th November, 2019, he lawfully travelled as a pillion passenger on motorbike registration No. KMEC 6397 along Uhuru Highway when its rider rode the motor cycle so carelessly at a very high speed that he lost control of motor bike allowing the same to roll as a result which the respondent suffered fracture of the left radius and ulna. He produced P. Exhibit 1 to 10 to support his claim and prove the injuries that he suffered. 10. PW2, No. 62350 CPL Julius Kimathi, a police officer attached to Central Police Station stated that an accident was reported at the station on 6.11.2023 involving motor cycle KMEC 639T ridden by Moses Osilo which resulted into grievous injuries of the passenger (the respondent). He also confirmed that the accident was still under investigation. 11. On the part of the appellant, Stephen Waigwa Murage, the Appellant’s Managing Director stated that the appellant is a country-wide dealer of motorcycle. He also admitted that motor cycle registration number KMEC 639T is registered in the name of the appellant. The witness, however, stated the said motor bike had never been used on the road and was brand new. He also stated the motor bike was still in their store, it had never been sold and that its number plate had never been fixed on it since it had never been sold. He, therefore, denied that the respondent rode on the motorcycle during subject accident alleged in his plaint. Further, the appellant’s Director stated 2nd defendant was not employee of the 1st defendant and thus the 1st defendant cannot be held liable for his actions and/or omissions. He produced copy of alleged delivery note, alleged container list, copy of the logbook of its motorcycle and picture of the number plate. 12. The Court has carefully re-evaluated the evidence adduced before the trial Court. This being first appeal the Court is obligated to re-evaluate the evidence adduced in the trial court in order to arrive at its own independent conclusion bearing in mind that it has neither seen or heard the witness and should make allowance in this respect **(See. Selle vs Associated Motor Boat Company (1968) EA).** 13. There are two issues for determination by the court in this matter: 14. Whether the appellant was the owner of the subject motor cycle herein at the time of the subject accident herein. 15. Whether the defendant is vicariously liable for the subject accident herein. 16. The appellant, through it’s witness Stephen Waigwa Murage, its Managing Director, admitted it is the owner of KMEC 639T and admitted its details are those in the logbook, search and the police abstract produced in court except that in the police abstract the motor cycle is indicated as boxer in whereas it is sanya in make. The witness also stated that chassis number of the motor cycle is LK1PCKLG1G1092491 and engine number162FMJ460704414. 17. This court agrees with the trial magistrate based on the totality of evidence adduced by the parties herein, the identical information about the motorcycle being registration number, chassis number, engine number rating colour, model number, log book serial number, log book number, date of manufacture, date of registration, custom number etc, the description limited to description in make in the log book is minor in the sum of all details compared. 18. Although the appellant’s witness testified that the motor cycle is new, was in its store and not been sold this court is persuaded that the motor cycle is the one the 2nd defendant rode and that the plaintiff was a passenger on it at time of the subject accident herein. 19. On whether the appellant is vicariously liable for the commission and/or omission of the 2nd defendant, no evidence has been tendered before the trial court to show that the rider was an authorized driver, employee or agent of the appellant or that he was riding the motorcycles herein for the appellant’s business or purpose. It is therefore my finding the appellant is not vicariously liable for action and/or omission of the 2nd defendant. 20. The above position is supported decision in the case of ***Sheikh Said -vs- Wilson & Another(2001) eKLR Civil Appeal No. 103 of 1999*** the court held as follows on vicarious liability : **“It must be shown that motor vehicle was being driven on the owner’s business or for the owner’s purpose is summed up in the passage in OMROD -VS- CROSSVILLE MOTOR SERVICES LTD 2AUBR753 at page 754 and 75 when Denly LJ as he was said** **“It is often been supposed that owner of a vehicle is only liable for the negligence of the driver if the driver is his servant acting in the cause of his employment. That is not correct the owner is liable if the driver is his agent, that is today, if the driver is with the owner’s consent driving the car or the owner’s business or for owner’s purpose**”. 1. The upshot of my finding is this appeal has merit and therefore, the same is allowed. Consequently, the trial court jjudgement set aside as against appellant. The appellant is awarded the costs of lower court case and the cost of this appeal against the respondent. Dated, signed and delivered on line via Microsoft team this 28th day of July 2026. **Hon. P. K. Rotich** **JUDGE** **In the presence of:** Kaburu for the appellant N/A for the respondent C/A Kipchirchir