https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6067

Real People Kenya Ltd v Kirongothi & 4 others (Civil Appeal E818 of 2021) [2026] KEHC 6067 (KLR) (Civ) (7 May 2026) (Judgment) Neutral citation: [2026] KEHC 6067 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E818 of 2021 AN Ongeri, J May 7, 2026 Between Real People Kenya Limited Appellant and Grace Nyakonyu Kirongothi 1st Respondent Jane Wangari Kinuthia 2nd Respondent Reuben Gichuru Gitonga 3rd Respondent Esther Wanjiru 4th Respondent Stanley Mwaniki Mtai 5th Respondent (Being an appeal from the judgment of Hon. ADUKE JPA (RM) in Milimani CMCC No.10913 of 2018 delivered on 19th November, 2021) Judgment 1.The 1st respondent in this appeal filed Milimani CMCC No. 10913 of 2018 against five defendants. 2.The appellant was the 4th defendant while the 2nd to 5th respondents were 2nd, 3rd and 5th defendants respectively. 3.The 1st respondent alleged that on 10/3/2018 while walking along Latema Road in Nairobi motor vehicle registration no. KCD 274P driven by the 2nd respondent on behalf of the 2nd, 3rd and 4th respondents and also the appellant was negligently driven and it lost control and knocked down the 1st respondent causing her bodily injuries. 4.The appellant and the 5th respondent defended the suit. They said they sold the motor vehicle. 5.Interlocutory judgment was entered against the 2nd, 3rd and 5th respondents. 6.The trial court found that the 2nd respondent was the registered owner of the motor vehicle as at 24/7/2018 and the 3rd respondent and the Appellant in this case were the previous owners of the motor vehicle. 7.The trial court found the 2nd, 3rd and 5th respondents together with the appellant 100% liable in negligence. 8.The damages were asses as followsGeneral damages for pain & suffering kshs. 600,000Special damages ksh.550+16,335Total 616,885 9.The appellant who was the 4th defendant has appealed against the judgment on the following grounds;i.That the Honorable Learned Magistrate erred in law and fact in failing to appreciate the fact that the Appellant being a financier who had been registered as co-owner of the subject vehicle KCD 274P solely for purposes of securing its financial interest could not be found liable for negligence arising from a road accident which occurred after the Appellant had in exercise of its rights as financier already sold the subject motor vehicle registration No. KCD 274P to the 5th Respondent.ii.That the Honorable Learned Magistrate erred in law and fact in failing to appreciate the fact that the Appellant had demonstrated that it had sold the vehicle by way of public auction on the 29th August 2017 to the 5th Defendant who was the lawful and beneficial owner of the vehicle as at the date of the accident which occurred on the 10th March 2018, and that the Appellant could not therefore be held liable under the circumstances for the said accidentiii.That the Honorable Learned Magistrate having found that motor vehicle was registered to the 2nd Respondent, and having further taken note of the evidence of the Appellant to the effect that it had sold the said vehicle, which evidence was not controverted, erred in law and fact in nonetheless proceeding to find all the Defendants, including the Appellant liable.iv.The Honorable Learned Magistrate erred in law and in fact in failing to analyze the question of ownership of the vehicle in view of the evidence presented in order to determine the same and correctly apportion liability, which analysis would have demonstrated that the Appellant was not the owner, not in control of, and had no insurable interest in the subject vehicle and could consequently not be held liable for the occurrence of the said accident.v.The Honorable Learned Magistrate erred in law and fact in finding the Appellant liable whilst the 5th Defendant who was the owner of the vehicle was a party to the suit and against who liability could rightly be apportioned, thereby failing to allocate liability to the correct party.vi.That the Honorable Learned Magistrate consequently erred in law and in fact in failing to take into account the totality of the evidence and supporting judicial precedent presented by the Appellant, thereby arriving at the wrong finding no supported by the evidence on the record and the law. 10.The parties filed written submissions as follows; the appellant submitted that the main premise for this application is the ruling of this court delivered on 18th April, 2024 in which the court reinstated the appeal with a condition that the same be fully prosecuted within 90 days thereof. 11.The Appellant in compliance and as a show of commitment to prosecuting its appeal, did file a record of appeal within 7 days of the ruling. 12.Further, in the month of May 2024, the Appellant’s advocates while in the process of applying for a mention date for directions for the Appeal, encountered a notice by the Honourable Deputy Registrar Civil Division on the Kenya Law Reports indicating that the Division intended to hold a Rapid Response Initiate (RRI) in the month of May and June, 2024 and as such parties pending appeals in pending appeal should proceed to file record of appeal and submissions. 13.On the strength of the said notice, which has been annexed in the Supporting Affidavit as Annexure SO-6, the Appellant filled its written submissions in support of the appeal. 14.The Appellant had complied fully in terms of filing of documents and what only remained was listing the matter for directions which the High Court Civil Appeals registry appeared to have been planning to handle such appeals through RRI. 15.The appellant submitted that the power to reinstate a dismissed appeal is discretionary and we call upon the court to exercise this discretion in favour of the Appellant. 16.This court has power to enlarge time necessary for compliance with the conditions issued in the ruling delivered on 18th April, 2024. Order 51 rule 6 of the Civil Procedure Rules empowers this court to enlarge the time as follows:“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed: Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.” 17.The appellant indicated that no prejudice will be suffered by the 1st Respondent has she already levied execution and the judgment of the lower court has been fully satisfied by the Appellant. 18.As a matter of fact, the Appellant herein now stands to suffer substantial and irreparable loss if the Appeal which is meritorious is not heard on its merits. The Respondents stand to lose nothing at this stage. 19.It’s the appellants position that appeal herein is arguable as the gist of the appeal is that the appellant was a mere financier whose interest was secured by joint registration of motor vehicle subject of the suit and thus the finding of liability as against the Appellant bank was erroneous and should be left to stand. 20.The 1st respondent alternatively submitted that the main issue raised in the appeal is against the finding of liability against the appellant who maintained that it had sold the suit vehicle before the suit accident and/or it was only a financier of the 4th respondent. 21.Its documents were never produced as exhibits and were not marked as evidence consequently they offend order 14 of the Civil Procedure Rules. 22.The 1st respondent argued that those documents are inadmissible and cannot be produced as evidence on appeal. 23.The appellant's witness was cross-examined and confirmed two critical aspects on legal sale and transfer of a vehicle. 24.He confirmed that appellant had no transfer form or a notice of sale or change of ownership to the registrar of motor vehicles. 25.What Sections 108 and 109 of The Traffic Act require is evidence of sale and not mere correspondence. 26.The issues for determination in this appeal are as follows;i.Whether a financier who is a co-registered owner of a motor vehicle can be held vicariously liable for a road traffic accident involving that vehicle;ii.Whether the appellant successfully rebutted the presumption of ownership under Section 8 of the Traffic Act by proving that it had sold the vehicle prior to the accident; andiii.Whether the trial court erred by failing to apportion liability correctly based on the evidence of beneficial ownership. 27.On the first issue, the law has been firmly settled that a financier who is registered as a co-owner purely as security for a loan does not attract liability for negligence arising from the operation of the motor vehicle. 28.The trial court’s finding that the appellant, as a mere financier, could be held 100% liable alongside the other defendants was a misdirection. 29.In the present case, the appellant’s evidence demonstrated that it had financed the vehicle and was registered as a co-owner merely to secure its financial interest, and there was no evidence presented by the 1st respondent to establish any agency relationship between the appellant and the driver of motor vehicle registration number KCD 274P. 30.Regarding the second issue of ownership and the attempt to rebut the statutory presumption under Section 8 of the Traffic Act, the court found that the appellant had successfully adduced evidence to prove that it was not the beneficial owner at the time of the accident. 31.While 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, this presumption is rebuttable. 32.While the registration certificate or an extract from the Registrar of Motor Vehicles constitutes the best evidence to prove ownership, the presumption can be displaced by evidence of beneficial or possessory ownership. 33.In this appeal, the appellant’s witness testified that the subject motor vehicle had been sold as at the date of the accident on 10th March 2018. 34.However, a critical flaw in the appellant’s case before the trial court was that its documents were never produced as exhibits or marked as evidence, which offends the provisions of the Evidence Act and the Civil Procedure Rules regarding the admissibility of documentary evidence. 35.The 1st respondent correctly argued that those documents are inadmissible and cannot be produced as evidence on appeal for the first time. 36.The appellant’s witness confirmed under cross-examination that the appellant had no transfer form or notice of sale or change of ownership filed with the Registrar of Motor Vehicles, which is what Sections 108 and 109 of the Evidence act require as evidence of sale and not mere correspondence. 37.Therefore, while the appellant established its position as a financier, it failed to properly prove the alleged sale to the 5th respondent through admissible documentary evidence before the trial court. 38.Nonetheless, this failure does not change the outcome on liability because the appellant’s status as a financier, rather than a beneficial owner in control of the vehicle, was sufficiently established through the unchallenged oral evidence that its registration was for security purposes only. 39.On the third issue of apportionment of liability, the trial court erred by lumping all defendants together and finding them 100% jointly liable without properly analyzing who had actual control and beneficial ownership of the vehicle. 40.The evidence on record, including the trial court’s own finding, indicated that the 2nd respondent was the registered owner of the motor vehicle as at 24th July 2018, while the appellant was a previous owner. 41.There was evidence that the 2nd respondent was the registered owner, and the 3rd, 4th, and 5th respondents were also implicated in the chain of ownership. 42.However, the appellant as the 4th defendant was merely a former owner and financier who had no role in the management or control of the vehicle at the time of the accident. 43.The trial court failed to appreciate the distinction between registered ownership for security purposes and beneficial ownership that carries with it the right to control and the attendant liability. 44.A lender or financier cannot be held vicariously liable for the acts of the borrower or the driver of the financed vehicle in the absence of proof of an agency relationship or control. 45.In conclusion, while the appellant failed to produce its documentary evidence in the trial court in an admissible manner, its oral evidence that it was a financier whose interest was secured by joint registration was sufficient to rebut the presumption that it was the beneficial owner in control of the vehicle. 46.The trial court therefore erred in law by finding the appellant 100% liable in negligence alongside the other respondents. 47.The upshot is that this appeal is allowed. The judgment delivered on 19th November 2021 in Milimani CMCC No. 10913 of 2018 is set aside insofar as it finds the appellant liable. 48.In substitution thereof, this court enters judgment that the appellant, Real People Kenya Limited, is not liable for the road traffic accident that occurred on 10th March 2018 involving motor vehicle registration number KCD 274P. 49.Liability for the said accident is hereby apportioned at 100% as against the 2nd, 3rd, and 5th respondents, who were the registered and beneficial owners in control of the vehicle at the material time. 50.Each party shall bear their own costs of this appeal. 51.Orders to issue accordingly. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 7TH DAY OF MAY, 2026.A. N. ONGERIJUDGEIn the presence of:Mr Kipkoech for the ApplicantMr Kaburu for the Respondent