https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/362

Pozzolana Stones Ltd v Smart Autos Ltd & another (Civil Case E11983 of 2021) [2026] KEMC 362 (KLR) (29 July 2026) (Judgment) Neutral citation: [2026] KEMC 362 (KLR) Republic of Kenya In the Milimani Commercial Chief Magistrate's Courts Civil Case E11983 of 2021 LA Mumassabba, PM July 29, 2026 Between Pozzolana Stones Limited Plaintiff and Smart Autos Limited 1st Defendant Abraham Lincoln 2nd Defendant Judgment Introduction 1.pThe Plaintiff instituted this suit seeking to recover a sum of Kshs.252,916.00, together with interest and costs, under the doctrine of subrogation following a road traffic accident involving Motor Vehicles Registration numbers KBH 557U Nissan Navara and KBF 181S Toyota Mark II. The Plaintiff contends that its Motor Vehicle, which was lawfully parked within its premises along Eldama Ravine Road on 3rd September 2019, was extensively damaged after motor vehicle KBF 181S veered off the road, rammed through the perimeter gate and collided with it. The Plaintiff pleaded that the accident was wholly occasioned by the negligence of the driver of Motor Vehicle KBF 181S. 2.The Plaintiff further pleaded that its insurer, Kenindia Assurance Company Limited, indemnified it for the repair costs and other incidental expenses and consequently became entitled to recover the amount paid from the persons responsible for the accident by virtue of the doctrine of subrogation. The Plaintiff therefore sought Judgment against the Defendants jointly and severally for special damages amounting to Kshs.252,916.00 together with costs and interest. 3.The 1st Defendant filed a Statement of Defence denying liability. It admitted being the registered owner of Motor Vehicle KBF 181S but contended that long before the occurrence of the accident it had sold the vehicle to one Samir Mohamed under a sale agreement dated 21st March 2019 and had surrendered possession thereof. It maintained that the purchaser had assumed possession and control of the vehicle and that the person driving the vehicle at the material time was neither its employee, servant nor agent. Consequently, the 1st Defendant denied liability and urged the Court to dismiss the suit against it. 4.The 2nd Defendant neither entered appearance nor filed a Defence despite service of summons. Consequently, interlocutory judgment was entered against him on 1st August ,2022. The matter therefore proceeded to formal proof hearing against the 2nd Defendant while the suit against the 1st Defendant proceeded to full hearing. Plaintiff's Evidence 5.The Plaintiff called three witnesses in support of its case. 6.The first witness, PW1, a Claims Officer employed by Kenindia Assurance Company Limited, testified on behalf of the insurer. He adopted his witness statement as his evidence-in-chief and informed the Court that the Plaintiff's motor vehicle had been comprehensively insured by Kenindia Assurance Company Limited. Following the accident of 3rd September 2019, the insurer investigated the claim, assessed the damage and indemnified the insured by paying the repair costs together with other related expenses. 7.PW1 testified that after compensating the insured, the insurer became subrogated to the rights of the insured and was therefore entitled to recover the amount paid from the persons responsible for the accident. He produced the insurance policy, claim documents, assessment report, repair invoices, payment vouchers, investigation report, police abstract, photographs of the damaged Motor Vehicle, demand letters and the official search obtained from the National Transport and Safety Authority (NTSA). According to the NTSA records, the 1st Defendant remained the registered owner of Motor Vehicle KBF 181S while investigations established that the 2nd Defendant was its beneficial owner and policy holder. 8.During Cross-Examination, PW1 readily conceded that he did not witness the accident. His testimony was based entirely upon the documentary records generated during the processing of the insurance claim. He admitted that he could not identify the driver of motor vehicle KBF 181S and could not state whether the driver was acting as an employee, servant or agent of either Defendant. Nevertheless, he maintained that the Plaintiff sued the Defendants because the official ownership records and the investigation report connected them with the offending Motor Vehicle. 9.The second witness, PW2,No.838509 Police Constable Andrew Ogweyo, attached to Gigiri Police Station, produced the Police Abstract relating to the accident. He testified that investigations conducted by the investigating officer established that motor vehicle KBF 181S caused the accident after leaving the roadway and colliding with the Plaintiff's parked vehicle. The Police Abstract attributed blame to motor vehicle KBF 181S. 10.Under cross-examination, PW2 acknowledged that he was not the investigating officer and had not visited the scene of the accident. He further admitted that the Police Abstract did not disclose the identity of the driver of the offending motor vehicle. Consequently, his evidence regarding the occurrence of the accident and attribution of blame was derived entirely from police records prepared by another officer. 11.The Plaintiff's third witness, PW3, Mr. Shashikant Kurji Kachra Patel, a Director of the Plaintiff company, testified that the Plaintiff's Motor Vehicle had been lawfully parked within its premises when motor vehicle KBF 181S veered off the road, broke through the company's gate and collided with it. He stated that immediately after the accident the matter was reported to Spring Valley Police Station and to the insurer. 12.PW3 testified that the Plaintiff incurred repair costs amounting to Kshs.217,616.00 in addition to assessor's fees, investigation charges, search fees and the cost of obtaining the police abstract. The insurer settled these expenses pursuant to the insurance policy. 13.Although PW3 did not personally witness the accident, he stated that the company's management personnel and security staff attended the scene immediately after the collision. He confirmed that investigations conducted by both the police and the insurer established that motor vehicle KBF 181S caused the accident and that the 1st Defendant was its registered owner while the 2nd Defendant was its beneficial owner. He further testified that despite service of demand notices, the Defendants failed to compensate the Plaintiff, necessitating the filing of the present suit. 14.The documentary evidence produced by the Plaintiff included the Police Abstract, NTSA records, insurance policy, assessor's report, repair invoices, payment vouchers, investigation report, photographs depicting the damage to the Plaintiff's vehicle, demand letters and proof of payment. The Plaintiff maintained that these documents established both liability and the quantum of its claim. Defendants' Evidence 15.The defence called DW1, Nicholas Osiako, the Deliveries Manager of the 1st Defendant, Smart Autos Ltd. He adopted his witness statement dated 9 May 2025 together with the bundle of documents previously filed as his evidence-in-chief. 16.DW1 testified that Motor Vehicle KBF 181S belonged to the 1st Defendant until 21 March 2019, when it was sold and possession handed over to Mohammed Sabir. He stated that upon delivery of the vehicle to the purchaser, the 1st Defendant relinquished possession and control and never repossessed the vehicle thereafter. 17.According to DW1, the person who was driving the motor vehicle at the time of the accident was not an employee, servant or agent of the 1st Defendant, and the 2nd Defendant was likewise not an employee or servant of the 1st Defendant. He maintained that the 1st Defendant therefore bore no responsibility for the acts of the driver or the accident in question. 18.During cross-examination, DW1 admitted that the NTSA search records still reflected the 1st Defendant as the registered owner of the motor vehicle. He explained, however, that although the 1st Defendant had initiated the transfer process and handed over all the necessary ownership documents to the purchaser, the purchaser had failed to accept ownership on the NTSA portal. Consequently, the registration remained in the name of the 1st Defendant despite the sale and transfer of possession. He further stated that he had not produced documentary evidence showing that the transfer process had been initiated. 19.In Re-Examination, DW1 reiterated that the Motor Vehicle was released to the purchaser on 21 March 2019 and emphasized that under the NTSA system a seller cannot compel a buyer to accept ownership electronically. He maintained that the continued registration of the vehicle in the 1st Defendant's name was solely because the purchaser had not completed the online transfer process, and that after the date of sale the vehicle was no longer under the 1st Defendant's possession, custody or control. Accordingly, the 1st Defendant denied liability for the accident and prayed for the dismissal of the suit with costs. Plaintiff's Submissions 20.The Plaintiff submitted that it had discharged the burden of proof on a balance of probabilities through both oral and documentary evidence. It was argued that the evidence established beyond dispute that motor vehicle registration number KBF 181S veered off the road and collided with the Plaintiff's Motor Vehicle, which had been lawfully parked within the Plaintiff's premises. The occurrence of the accident was confirmed by the Police Abstract, the investigation report, photographic evidence and the testimonies of the Plaintiff's witnesses. 21.Counsel submitted that there was no dispute that the Plaintiff's insurer indemnified the Plaintiff by settling the repair costs together with the incidental expenses incurred in assessing and investigating the loss. Consequently, by virtue of the doctrine of subrogation, the insurer became entitled to pursue recovery against the persons legally responsible for the accident in the name of the insured. 22.The Plaintiff further submitted that the official search from the National Transport and Safety Authority (NTSA) established that the 1st Defendant was the registered owner of motor vehicle KBF 181S at the time of the accident. It was argued that under section 8 of the Traffic Act, the person in whose name a motor vehicle is registered is presumed to be its owner unless the contrary is proved. Although the investigation report identified the 2nd Defendant as the beneficial owner and policy holder of the offending vehicle, this did not absolve the 1st Defendant from liability because legal ownership remained vested in it. 23.The Plaintiff further submitted that the accident was caused solely by the negligence of the driver of motor vehicle KBF 181S. The vehicle left the roadway, broke through the Plaintiff's perimeter gate and rammed into a stationary vehicle parked inside private premises. Such circumstances, counsel argued, spoke for themselves and invoked the doctrine ofres ipsa loquitur, thereby shifting the evidential burden to the Defendants to explain how the accident occurred. 24.On quantum, the Plaintiff submitted that special damages had been specifically pleaded and strictly proved through invoices, receipts, payment vouchers, assessor's reports, investigation reports and proof of payment. It relied upon the decisions in Concord Insurance Co. Ltd -Vs- David Otieno Alinyo & Another,Burdis -Vs Livsey,Nkuene Dairy Farmers Co-operative Society Ltd -Vs-Ngacha Ndeiya, and Kenya Breweries Ltd, Kiambu -Vs- General Transport Agency Ltd, for the propositions that damages for damage to a Motor Vehicle are recoverable on the basis of the reasonable cost of repairs and that documentary evidence such as repair invoices and assessment reports sufficiently proves special damages. 25.The Plaintiff therefore urged the Court to enter judgment jointly and severally against both Defendants forKshs.252,916.00, together with interest and costs of the suit. 1st Defendant's Submissions 26.The 1st Defendant submitted that the Plaintiff had failed to establish any legal basis for holding it liable for the accident. 27.Counsel argued that although the NTSA records reflected the 1st Defendant as the registered owner of the motor vehicle, the uncontroverted evidence demonstrated that the vehicle had been sold to Samir Mohamed on 21st March 2019, almost six months before the accident. A written sale agreement and an outgoing vehicle register were produced to demonstrate that possession and control of the vehicle had passed to the purchaser immediately upon sale. 28.The Defendant submitted that registration under section 8 of the Traffic Act merely creates a rebuttable presumption of ownership. The evidence tendered by DW1, together with the documentary exhibits, sufficiently displaced that presumption by proving that beneficial ownership had already passed to the purchaser before the accident occurred. 29.The Defendant further argued that the Plaintiff itself produced an investigation report showing that the 2nd Defendant was the beneficial owner of the vehicle and the policy holder under the insurance policy. It was therefore contradictory, counsel submitted, for the Plaintiff to maintain that the 1st Defendant remained liable merely because its name had not yet been removed from the NTSA records. 30.On the issue of vicarious liability, the Defendant submitted that the Plaintiff failed to establish the identity of the driver of the offending vehicle. None of the Plaintiff's witnesses witnessed the accident, and even the Police Abstract omitted the driver's identity. There was therefore no evidence that the driver was an employee, servant or agent of the 1st Defendant. 31.Counsel relied on Morgan v Launchbury [1972] 2 All ER 606,HCM Anyanzwa & 2 Others -Vs- Gasper Lugi De Casper (1981) KLR 10,Joseph Wabukho Mbayi -Vs- Frida Lwile Onyango [2019] eKLR, and Edward Mungai Waweru -Vs- Samson Ochieng Kagunda & Another [2017] eKLR, for the principle that vicarious liability does not arise merely because one is the registered owner of a motor vehicle. The Plaintiff must prove that the driver was acting as the owner's servant, employee or agent or was driving under the owner's authority. 32.Counsel submitted that the Plaintiff produced absolutely no evidence identifying the driver or establishing any agency relationship between that driver and the 1st Defendant. Accordingly, the Plaintiff had failed to discharge the burden imposed by Sections 107, 108 and 109 of the Evidence Act. 33.The 1st Defendant therefore urged the Court to dismiss the suit against the 1st Defendant with costs. Analysis and Determination 34.I have carefully considered the pleadings, the oral and documentary evidence adduced by the parties, the submissions by counsel and the applicable law. From the foregoing, the following issues arise for determination:1.Whether the Plaintiff proved that the accident occurred through the negligence of the driver of Motor Vehicle Registration No. KBF 181S.2.Whether the 1st Defendant was liable as the owner of Motor Vehicle Registration No. KBF 181S notwithstanding its contention that it had sold the vehicle before the accident.3.Whether the Plaintiff proved its claim under the doctrine of subrogation.4.Whether the Plaintiff proved special damages.5.What orders should issue as to costs. (i) Whether the Plaintiff Proved that the Accident Occurred through the Negligence of the Driver of Motor Vehicle Registration No. KBF 181S. 35.The legal burden of proof lies upon the party who alleges. Sections 107, 108 and 109 of the Evidence Act, Cap 80 Laws of Kenya provide that whoever desires any Court to give Judgment as to any legal right dependent upon the existence of facts which he asserts must prove those facts. 36.The Plaintiff pleaded that on 3rd September 2019 Motor Vehicle Registration No. KBF 181S left the road, rammed through the Plaintiff's perimeter gate and collided with Motor Vehicle Registration No. KBH 557U, which was lawfully parked within the Plaintiff's premises. 37.Although none of the Plaintiff's witnesses witnessed the accident, the occurrence of the accident was proved through documentary evidence comprising the Police Abstract, investigation report, photographs of the damaged motor vehicle and the assessor's report. The Police Abstract confirmed that Motor Vehicle Registration No. KBF 181S was involved in the accident and attributed blame to that vehicle. 38.The defence did not dispute that the accident occurred or that Motor Vehicle Registration No. KBF 181S was involved. The only dispute concerned ownership and liability. 39.The circumstances surrounding the accident demonstrate that the offending vehicle left the carriageway, broke through a perimeter wall and collided with a stationary vehicle parked inside private premises. Such an occurrence does not ordinarily happen in the absence of negligence. 40.The doctrine of res ipsa loquitur therefore applies. 41.In Embu Public Road Services Ltd -Vs- Riimi [1968] EA 22, the East African Court of Appeal held that where the circumstances of an accident are such that they speak for themselves, the evidential burden shifts to the Defendant to explain that the accident occurred without negligence. 42.Similarly, in Statpack Industries -Vs- James Mbithi Munyao [2005] eKLR, the Court of Appeal observed that once facts giving rise to the doctrine are established, an evidential burden shifts to the defendant to offer a reasonable explanation. 43.In the present case, no explanation whatsoever was offered regarding how the vehicle left the road and entered the Plaintiff's compound. 44.I therefore find that negligence on the part of the driver of Motor Vehicle Registration No. KBF 181S was proved on a balance of probabilities. (ii) Whether the 1st Defendant was Liable as Owner of the Motor Vehicle 45.This constitutes the central issue in this dispute. 46.The Plaintiff relied principally upon the NTSA Search showing that Motor Vehicle Registration No. KBF 181S remained registered in the name of the 1st Defendant. 47.Section 8 of the Traffic Act provides: “The person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle." 48.The law therefore creates only a rebuttable presumption of ownership. 49.The Court of Appeal in Osapil -Vs- Kaddy [2000] 1 EA 187 held that registration is merely prima facie evidence of ownership and that ownership may be disproved by other credible evidence. 50.Likewise, in Joel Muga Opija -Vs-East African Sea Food Ltd [2013] eKLR, the Court held that beneficial ownership may differ from registered ownership and may be established through evidence. 51.The 1st Defendant maintained that it had sold Motor Vehicle Registration No. KBF 181S to Mohammed Sabir on 21st March 2019 and surrendered possession and control before the accident. Although the NTSA records still reflected the 1st Defendant as the registered owner, DW1 explained that the purchaser had failed to complete the electronic transfer process. However, the defence produced no documentary evidence, such as NTSA transfer records or acknowledgements, to show that the transfer had been initiated, and the alleged purchaser was not called as a witness, thereby weakening its case. 52.Nevertheless, the Plaintiff bore the burden of proving that the driver of the offending vehicle was acting as the servant, employee or agent of the 1st Defendant. The Plaintiff failed to do so. PW1, PW2 and PW3 all admitted that they could not identify the driver, and the Police Abstract did not disclose the driver's identity. Consequently, there was no evidence linking the driver to the 1st Defendant. In the absence of proof of an agency or employment relationship, the Court finds that the Plaintiff failed to establish vicarious liability against the 1st Defendant, as registration alone does not impose liability. 53.The law on vicarious liability is well settled. 54.In Morgan -Vs- Launchbury [1972] 2 All ER 606, the House of Lords held that ownership alone does not impose liability unless the driver was acting as the owner's servant or agent or was driving under the owner's authority. 55.The same principle was adopted in Kenya in HCM Anyanzwa & 2 Others -Vs- Gasper Lugi De Casper (1981) KLR 10, where the Court held that ownership alone is insufficient to establish vicarious liability. 56.Similarly, in Edward Mungai Waweru -Vs- Samson Ochieng Kagunda & Another [2017] eKLR, the High Court reiterated that proof of ownership without proof of agency cannot sustain liability. The Plaintiff also relied upon its own investigation report. 57.Ironically, that report identified the 2nd Defendant as the beneficial owner and policy holder of the offending motor vehicle. 58.That finding substantially supports the defence case that beneficial ownership had already passed. 59.The Court therefore finds that although the statutory presumption under section 8 of the Traffic Act initially attached to the 1st Defendant, the totality of the evidence sufficiently rebuts the inference that the vehicle remained under its possession and control at the time of the accident. 60.More importantly, no evidence whatsoever established that the driver was acting on behalf of the 1st Defendant. 61.Consequently, the Plaintiff has failed to prove liability against the 1st Defendant. (iii) Whether the Plaintiff Proved its Claim under the Doctrine of Subrogation 62.The evidence before the Court establishes that following the accident, the Plaintiff's insurer, Kenindia Assurance Company Limited, indemnified the Plaintiff by settling the cost of repairs and the related expenses incurred as a result of the damage to the insured motor vehicle. The law on subrogation is well settled. In Castellain -Vs- Preston (1883) 11 QBD 380, the Court held that once an insurer has fully indemnified an insured for a loss, the insurer is entitled to exercise, in the name of the insured, all rights and remedies that the insured would have had against the party responsible for the loss. This doctrine has long been recognized and applied by Kenyan courts. 63.In support of its claim, the Plaintiff produced the insurance policy, payment vouchers, discharge documents, repair invoices and the assessor's report, all of which demonstrated that the insurer had settled the Plaintiff's claim in accordance with the terms of the insurance policy. The documentary evidence sufficiently established that the Plaintiff had been indemnified for the loss suffered and that the insurer had consequently acquired the right to pursue recovery from the party legally responsible for the accident in the name of the insured. The Court is therefore satisfied that the Plaintiff properly invoked the doctrine of subrogation and was entitled to institute the present recovery proceedings. (iv) Whether Special Damages were Proved 64.The law is settled that special damages must not only be specifically pleaded but must also be strictly proved. This principle was affirmed by the Court of Appeal in Hahn -Vs- Singh [1985] KLR 716 and Coast Bus Service Ltd -Vs- Murunga & Others [1992] eKLR, where the Courts held that a Claimant seeking special damages must adduce cogent documentary evidence in support of every item claimed. 65.In the present case, the Plaintiff specifically pleaded special damages amounting to Kshs.252,916.00, comprising repair charges, assessor's fees, investigation fees, the cost of obtaining a copy of records and the police abstract. 66.To prove these claims, the Plaintiff produced an Assessment Report assessing the damage to the Motor Vehicle; a Repair Estimate detailing the cost of repairs; a Repair Authority authorising the repairs; Repair Invoices showing the amounts charged for the repairs; Payment Vouchers demonstrating that the insurer settled the repair costs and incidental expenses; a Satisfaction Note confirming that the repairs had been completed to the Plaintiff's satisfaction; an Investigation Report establishing the circumstances of the accident and identifying the beneficial owner of the offending motor vehicle; the Police Abstract confirming the occurrence of the accident; an NTSA Search showing the registered ownership of Motor Vehicle Registration No. KBF 181S; together with receipts evidencing payment of the assessor's fees, investigation charges, search fees and the cost of obtaining the Police Abstract. 67.The authenticity and admissibility of these documents were not seriously challenged during cross-examination. Indeed, the Defendants neither disputed the expenditure incurred nor tendered any contrary evidence to challenge the reasonableness of the repair costs or the incidental expenses claimed. 68.The Court of Appeal in Concord Insurance Co. Ltd v David Otieno Alinyo & Another held that repair costs supported by assessment reports, invoices and proof of payment constitute sufficient proof of special damages. Likewise, in Nkuene Dairy Farmers Co-operative Society Ltd -Vs- Ngacha Ndeiya [2010] eKLR, the Court held that the reasonable cost of restoring a damaged motor vehicle to its pre-accident condition is the proper measure of damages. 69.Having examined the documentary evidence on record, I am satisfied that each item of the Plaintiff's claim was specifically pleaded and strictly proved. The Plaintiff therefore established special damages in the sum of Kshs. 252,916.00. While such proof entitled the Plaintiff to recover the said amount from the party found liable, proof of damages alone cannot found liability. Since the Plaintiff failed to establish vicarious liability against the 1st Defendant, the proved special damages are recoverable only from the 2nd Defendant, whose liability was established during the formal proof proceedings. (vii) Costs and Interest 70.Section 27(1) of the Civil Procedure Act provides that costs follow the event unless the Court, for good reason, orders otherwise. 71.The Plaintiff has succeeded against the 2nd Defendant and is therefore entitled to the costs of the suit as against him. 72.However, the Plaintiff has failed to establish liability against the 1st Defendant. The evidence adduced by the 1st Defendant successfully rebutted the statutory presumption of ownership by demonstrating that possession and beneficial ownership had passed before the accident. The Plaintiff further failed to prove that the unidentified driver was acting as the servant or agent of the 1st Defendant. 73.Ordinarily, the 1st Defendant would be entitled to its costs. However, I note that at the time the suit was instituted, the official NTSA records still reflected the 1st Defendant as the registered owner of the offending Motor Vehicle. It was therefore not unreasonable for the Plaintiff to join the 1st Defendant in the proceedings. In the circumstances, I consider it just that each party shall bear its own costs as between the Plaintiff and the 1st Defendant, while the 2nd Defendant shall bear the Plaintiff's costs of the suit. 74.Interest on the decretal sum shall accrue at court rates from the date of filing suit until payment in full. Conclusion 75.Consequently, I find that the Plaintiff has failed to prove liability against the 1st Defendant. However, the Plaintiff has proved its case against the 2nd Defendant on a balance of probabilities. Accordingly, Judgment is entered in favour of the Plaintiff against the 2nd Defendant as follows:1.Judgment is entered for the Plaintiff against the 2nd Defendant for the sum of Kshs.252,916.00 (two hundred and fifty two thousand, nine hundred and sixteen) made up as follows:Repair charges....................................................Kshs.217,616 .00Assessor's fees........................................................Kshs.10,540.00Investigation fees..................................................Kshs.24,010 .00Copy of records..........................................................Kshs.550 .00Police Abstract............................................................Kshs.200.00Total.......................................................................Kshs.252,916.002.The said sum shall attract interest at court rates from the date of filing suit until payment in full.3.The 2nd Defendant shall pay the costs of the suit to the Plaintiff.4.The Plaintiff's suit against the 1st Defendant having been dismissed, each party shall bear its own costs as between the Plaintiff and the 1st Defendant.30 Days Right of Appeal. JUDGEMENT DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 29THDAY OF JULY,2026__________________L.A. MUMASSABBAPRINCIPAL MAGISTRATEIn the presence of :M/s Wambugu for the PlaintiffMr. Nderitu for the 1st DefendantCourt Assistant: Phoebe.