https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10962

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISII** **CIVIL APPEAL NO. E151 OF 2025** **RENT WORKS EAST AFRICA LIMITED…...APPELLANT** **VERSUS** **SOLOMON KIRAREI KAIKAI………………1ST RESPONDENT** **THE HON. ATTORNEY GENERAL….………2ND RESPONDENT** **(Being an appeal from the judgement and decree of the Magistrate’s Court at Ogembo (Hon. I.K.Rono) dated 23rd September, 2025 in Ogembo CMCCC/E110/2021)** **BETWEEN** **SOLOMON KIRAREI KAIKAI………………………PLAINTIFF** **VERSUS** **RENT WORKS EAST AFRICA LIMITED…………1st DEFENDANT** **THE HON. ATTORNEY GENERAL………………2nd DEFENDANT** **JUDGEMENT** 1. The Appeal arises from the judgement and decree of the **Hon. I.K.Rono (SRM)** dated **23rd September, 2025 delivered** in **Ogembo CMCCC/E110/2021** in which judgement was entered for the 1st Respondent as against the appellant. In the impugned judgment the appellant was found wholly liable with the 1st Respondent being awarded Ksh**. 1, 600, 000/=** in general damages for pain and suffering, **Ksh. 400, 000/=** future medical expenses and **Ksh. 7, 050/=** in special damages. 2. Being aggrieved by the said judgement, the Appellant has preferred this appeal through a memorandum of appeal dated30th September, 2025. Thegroundsin support of appeal of the appeal are as reproduced hereunder; 3. The trial court did not have jurisdiction to handle the claim under the Work Injury Benefits Act, 2007 (Cap 236). 4. The trial magistrate misapprehended and misapplied the law hence arriving at the wrong finding that the government, which is the employer of 1st respondent, was not liable for the accident. 5. The assessment and award of general damages by the trial magistrate was so inordinately high that it represented erroneous estimate of damages for the injuries sustained by the 1st respondent. 6. The trial magistrate erred in law and fact to hold the appellant liable for the 1st respondent’s medical expenses when the same are covered by 1st respondent’s health insurance cover provided by his employer, the National Police Service. 7. The trial magistrate was biased in his analysis of evidence thereby favoring the 1st respondent to the prejudice of the appellant. 8. The award of damages by the trial magistrate is so inordinately high that it contravenes public interest safeguarding insurance business from total collapse. **BRIEF FACTS** 1. The 1st respondent, vide a plaint dated **29th April 2021,** instituted suit against the appellant and the 2nd respondent seeking both general and special damages plus costs for future medication for injuries sustained in a road traffic accident involving motor vehicle registration number **GKB 213H** in which the 1st respondent was a passenger. The 1st Respondent claimed that on 29th July, 2020 he was lawfully travelling along Kisii-Kilgoris road as a passenger aboard the aforesaid motor vehicle when, due to the negligence of its driver, it collided head on with another motor vehicle Reg. No. **KCS 286Q** thereby causing the 1st respondent to suffer serious bodily injuries. 2. He blamed the occurrence of the accident on the driver of motor vehicle registration number **GKB 213 H** who allegedly negligently drove and/or managed the vehicle that he permitted it to lose control, veer off its lane and collide head on with motor vehicle Reg. No. **KCS 286 Q.** 3. He claimed that as a result of the aforesaid accident, he sustained serious injuries involving right acetabular fracture, sciatic nerve injury, right hip dislocation, blunt chest injury, basal atelectasis, and left lower rib fractures. 4. He also claimed future medical expenses as a result of the accident, saying he sustained several fractures which were managed by way of fixation of metal implants which require future removal through another surgical operation estimated to cost approximately **Ksh. 400, 000/=**. 5. The Appellant filed its statement of defence dated **7th July, 2021** denying the occurrence of the accident, denying proprietary interest in motor vehicle GKB **213H** and allegations that it was negligently driven and or managed. 6. The Appellant also denied any vicarious liability for tortious acts, specifically that the aforementioned motor vehicle was under its control, management or supervision. It is averred that the motor vehicle was under the total and or independent control, management, use and supervision by the Government of Kenya for the government’s benefit when the accident occurred and therefore that the appellant not vicariously liable at all for the manner of its usage. 7. The Appellant maintained that it was merely a supplier of vehicles to the government of the Republic of Kenya and that it is not liable directly or vicariously for any tortious acts committed by government officials while the vehicles are in independent control, use, management, supervision and instruction by the government and that it did not have any control or use over the vehicle. **APPELLANT SUBMISSIONS** 1. The Appellant challenges the jurisdiction of the trial court, submitting that the suit arises out of an occupational accident under the provisions of **Section 10 (4)** of **Work Injury Benefits Act, 2007 (Cap 236)** and that the trial court lacked jurisdiction to handle the claim for compensation under Sections 10, 16 and 21 of the Act. It relies on the case of **Owners of the Motor Vessel “Lilian S” V Caltex Oil (Kenya) Ltd [1998] eKLR**. 2. It is the appellant’s submission that the 1st Respondent is an employee of the National Police Service who got injured while escorting prisoners from Ogembo Law Court to Nyangusu Police Station and that motor-vehicle **GKB 213 H Toyota Land Cruiser** was provided by his employer in the course of his employment for the purpose of and in the interest of and or in connection with his employer’s business. That he was therefore subject to the provisions of the law under the Work Injury Benefits Act (Cap 236). 3. It was submitted that an occupational accident under the provisions of the Work Injury Benefit Act (cap 26) SS. 10, 16 and 21 of the Act require claims for compensation arising out of occupational accidents to be lodged before the **Director of Occupational Safety and Health Services**. 4. It was also submitted that the fact that the 1st Respondent was using leased equipment was immaterial as long as it was provided by his employer, that it did not exempt an occupational accident from the provisions of the **Work Injury Benefits Act**. 5. On liability, it was submitted that the learned trial magistrate misapprehended and misapplied the law on vicarious liability by finding the appellant vicariously liable for negligent acts committed by a police officer who was driving the motor-vehicle in his official duty assigned by his employer ,the National Police Service, rather than finding the police officer’s master vicariously liable for the negligent acts of its employee. That the legal maxim of ***Qui Facit per alium facit perse (he who acts through another acts himself)*** required that in order for a party to be vicariously liable there has to be an agency relationship or a master-servant, employer-employee relationship. 6. It is submitted that a correct interpretation and application of the principle underlying vicarious liability, in the circumstances of the case, would support a finding that the 2nd Respondent (Attorney General) was vicariously liable for the negligent acts of the police driver that caused the accident since there was no agency relationship between the policeman and the appellant. It relied on the case of **Morgan V Launchbury [1972] 2 ALL ER 607**. 7. On assessment of general damages and future medical expenses, the Appellant submitted that the trial court failed to take into consideration that the 1st Respondent was entitled to compensation from his employer under the provisions of **Section 10(2)** of the **Work Injury Benefits Act**. 8. It was also submitted that there was no just or legal basis for the medical expenses of **Ksh. 400, 000/=** as that it was already provided under the insurance cover of the employer. 9. The Appellant also faulted the award by the trial court as being inordinately high, submitting that it was not comparable to recent awards by other courts for comparable injuries. It cited the cases of **Atunga v Mogambi (Civil Appeal E009 of 2021) [2022] KEHC 9854 (KLR)** where the plaintiff/respondent sustained injuries involving bruises on the frontal part, cut wound on the parietal region, chest trauma, dislocation of the right wrist, bruises with multiple cut wounds, fracture of the right tibia, fibula bones, dislocation of the right hip joint . It is submitted for the appellant that an awarded of **Ksh. 550, 000/=** for the above injuries was affirmed by the High Court. The appellant also cited the cases of **Nguku Joseph & Another V Gerald Kihiu Maina [2020] eKLR, Peter Gakere Ndiangui v Sarah Wangari Maina [2021] eKLR** and **Daniel Otieno Owino & Another V Elizabeth Owuor [2020] eKLR.** 10. The appellant also submitted that there was bias in the judgement apparent through the trial court awarding the 1st Respondent double compensation despite other compensation being due to him under the Work Injury Benefits Act. According to the appellant, condemning the appellant to pay medical expenses while the 1st respondent was already covered under the employer’s medical scheme, absolving the government of vicarious liability and finding that the issue of jurisdiction ought to have been raised prior to the filing of the suit occasioned grave injustice to the appellant. The Appellant also faulted the trial court for not taking into account the harsh state of the economy. **RESPONDENT’S SUBMISSIONS** 1. The 1st Respondent submitted that the trial court’s decision was rendered within the evidentiary context of the testimony of five witnesses. 2. He submitted that PW1 ,Cpl Joan Achieng, a police officer stationed at Ogembo Police Station testified and confirmed that an accident had indeed occurred on 29th July, 2020 involving motor vehicle Reg. **GKB 213H** and another motor vehicle Reg. No. **KCS 286 Q**. That the 1st Respondent had been lawfully travelling as a passenger aboard motor vehicle **GKB 213H** and that the driver of the said motor vehicle veered off his lane onto the opposite lane and as a result, violently collided with an oncoming motor-vehicle **KCS 286 Q**. It is averred that the driver of motor vehicle **GKB 213 H** was to blame for the accident. 3. The 1st Respondent testified that he had sustained severe injuries following the accident as pleaded in his plaint. PW3, a clinical officer testified that the 1st Respondent sustained the injuries that had been pleaded in the plaint. PW4, also a clinical officer attached to Mediheal hospital, testified that the 1st Respondent was treated at their facility. PW5, who is a senior medical officer testified that he had examined the 1st Respondent and prepared a medical report wherein the nature of the 1st Respondent’s injuries were in the nature of ***“grievous harm”*** with permanent disability assessed at 50% and that he would require another surgery at a cost of Ksh. 400, 000/=. 4. The 1st Respondent submits that the trial court was properly seized of jurisdiction for the reason that the suit before the lower court was an ordinary civil claim in negligence arising out of a road traffic accident and that the evidence before the court was that the motor vehicle was registered in the Appellant’s name. 5. It is his submission that the person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed the owner of the vehicle as per the provisions of Section 8 of the Traffic Act. 6. It was submitted that leasing the vehicle to a third party, including the government, did not divest the registered owner of title neither did it transfer ownership nor automatically transfer legal responsibility in tort. Therefore, the trial court was perfectly entitled to entertain a negligence claim against the registered owner and determine whether liability attached. 7. The 1st Respondent submitted that the appellant did not place before the trial court any evidence on how the motor vehicle registered in its name ended up in the hands of the National Police Service with GK Plates. That it was not in the place of the trial court to assume the nature of the relationship between the appellant and the government of Kenya. It was his submission that where it was proved that a car has caused damage by negligence, then in the absence of evidence to the contrary, a presumption arises that the owner is responsible for the acts of negligence the driver. He relied on the case of **Rentco East Africa Limited v Dominic Mutua Ngonzi (Civil appeal 45 of 2020** and **Kansa v Solanki [1969] EA 318.** 8. It was also submitted that the appellant did not plead that the 1st Respondent was a government employee or an employee of whichever entity for that matter. That with regard to the statement of defence, the only thing that was pleaded was that the 1st Respondent was a prisoner being ferried by the motor vehicle **GKB 213 H.** 9. It was the 1st Respondent’s submissions that parties are strictly bound by their pleadings and that having not raised the issue in their pleadings, the 1st Respondent’s employment status is a matter which, as a matter of principle, was not open for the appellant to be heard and lead evidence on. That the appellant could not plead one position and then proceed to make submissions on a very different position. He relied on the cases of **Raila Amolo Odinga & Another v IEBC & 2 Others (2017) eKLR** and **Mellen Mbera v James Theuri Wambugu [2020] .** 10. It was submitted that while the appellant argued that the cause of action was an occupational accident that ought to have been referred to the Director of Occupational Safety and Health.,the argument was flawed, as it was based on an incomplete reading of the law as articulated under the Work Injury Benefits Act, Section 17 that allowed claims for damages in court against third parties. 11. On liability, it is submitted that the trial court’s finding on liability was a logical offshoot that followed the probative value of the evidence that was tendered. It was his submission that direct, circumstantial, oral and documentary evidence tendered before the trial court elucidated an accident with substantial and actionable negligence on the part of the appellant’s driver/agent. That the accident in question occurred when the driver of motor vehicle registration No. **GKB 213 H** was speeding and veered off his lane and permitted the same to collide with an oncoming motor vehicle. It was his submission that this evidence was not controverted and that he relied on the doctrine of **res ipsa loquitor.** 12. On the issue of quantum of damages, it is submitted that the trial court based its general damages award on the correct principles and considerations. That no evidence was tendered to controvert the nature and seriousness of the 1st Respondent’s injuries as pleaded. It is submitted that the assessment of general damages is at the discretion of the trial court and that an appellate court is not justified in substituting a figure of its own for that awarded by the court below simply because it would have awarded a different figure if it had tried the case at the first instance. 13. That an appellate court could only justifiably interfere with the quantum of damages awarded by the trial court, if it is satisfied that the trial court applied the wrong principles by taking into account some irrelevant factor, leaving out some relevant ones therefore arriving at an erroneous estimate or misapprehended the evidence. He relied on the case of **Catholic Diocese of Kisumu v Sophia Achieng Tete (2004) 2 KLR 55, James Chelagat Bor v Andrew Otieno Onduu [1988-92] 2 KAR 288; [1990-1994] EA 47** and **Southern Engineering Company Ltd v Mutia [1985] eKLR.** **ISSUES FOR DETERMINATION** 1. From the foregoing, the issues which arise for determination are: 2. **Whether the trial court had the jurisdiction over the suit or it was a work injury claim falling within the exclusive framework of the Work Injury Benefits Act?** 3. **Whether the general damages awarded were commensurate with the injuries suffered by the 1st respondent.** 4. **ANALYSIS AND DETERMINATION** 5. This being a first appellate court, I’m cognizant of the duty to reassess or to re-evaluate the evidence and reach my own conclusions as was held in the case of **Selle –vs- Associated Motor Boat Co. [1968] EA 123:** **“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal form a trial by the High Court is by way of a retrial and the principles upon the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect, in particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”** 1. Similarly in **Coghlan vs. Cumberland (1898) 1 Ch. 704, the Court of Appeal (of England) stated as follows -** **"Even where, as in this case, the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to rehear the case, and the court must reconsider the materials before the judge with such other materials as it may have decided to admit. The court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the court comes to the conclusion that the judgment is wrong...When the question arises which witness is to be believed rather than another and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanor, which may show whether a statement is credible or not; and these circumstances may warrant the court in differing from the judge, even on a question of fact turning on the credibility of witnesses whom the court has not seen."** ### I Whether the trial court had the jurisdiction over the suit or it was a work injury claim falling within the exclusive framework of the Work Injury Benefits Act 1. **The Work Injury Benefits Act, 2007** ("WIBA") applies to all employees, including those employed by the Government, other than members of the defence forces. Sections 10, 16 and 21 of the Act, as interpreted by the Supreme Court in **Law Society of Kenya v Attorney General & Another, Petition No. 4 of 2019, [2019] eKLR**, require that a claim by an employee against his employer for compensation for an injury sustained in the course of his employment be lodged, in the first instance, before the Director of Occupational Safety and Health Services, with a right of appeal to the Employment and Labour Relations Court. Where such a claim is instead brought directly to the ordinary courts, the trial court has no jurisdiction to entertain it and must down its tools as was held in the case **Owners of the Motor Vessel "Lilian S" v Caltex Oil (Kenya) Limited [1989] KLR 1.** 2. The evidence placed before the trial court shows that the 1st respondent was a police officer who was attached to Keroka police station at the time of his testimony. .He asked the court to adopt averments in his filed written statement dated 23rd April, 2021 which is to be found at pages 68 to 69 of the record of appeal as his evidence in chief. It shows that he was travelling on 29th July, 2020 aboard motor vehicle Reg. No. GKB 213 H from Ogembo Law Courts to Nyangusu police station when he was involved in a road traffic accident. GKB 213 H is said to have veered off its lane onto the lane of KCS 286 Q thereby causing a head-on collision between the two vehicles. The trial court found it as a fact that the driver of GKB 213 H was negligent in his manner of driving and was to blame for causing the accident. Evidence adduced shows that the 1st respondent suffered extensive bodily injuries including loss of consciousness. 3. When the 1st respondent was cross-examined by the counsel for the appellant, he told the court that he was a police officer posted to Nyangusu police station***.*** It washis evidence that he was on duty and had taken remandees to court. He told the court that the police were using the motor vehicle Reg. GKB 213 H and that all police officers are beneficiaries of an insurance cover. He was aware that he is insured while o duty and that there was a work benefits insurance cover. He blamed the driver of GKB 213 H for causing the accident and told the court that the 2nd respondent was responsible for his compensation. 4. On further cross-examination by the counsel for the 2nd respondent, the 1st respondent told the court that he joined the National Police Service in the year 1990. He confirmed that he was on duty at the time of his accident. He conceded that GKB 213 H is a Government vehicle. Chief Inspector Julius Kipkemoi Langat testified for the 2nd respondent and produced a duplicate police file (see defence exhibit 2). He told the court that the driver of GKB 213 H was to blame for the accident. The police file contains invaluable evidence as regards how the accident of 29th July, 2020 occurred. The police file shows that the drivers of both GKB 213 H and KCS 286 Q did not survive the accident. The investigators heaped blame on the late PC James Ngatia for causing the accident. 5. A work ticket running from 1st through 29th July, 2020 shows that GKB 213 H was a police vehicle used to advance police work exclusively. Having established that GBK 213 H was used for exclusive police assignments, was driven by a duly authorized driver, was carrying police officers on duty including the 1st respondent and was involved in an accident while in the line of duty, the question then is who has jurisdiction to entertain any claim arising from the accident? An ***“accident”*** is defined under the Work Injury Benefits Act, Cap 236 as meaning an accident arising out of and in the course and scope of an employee’s employment and resulting in personal injury (see Interpretation under S. 2 of the Act). . The appellant submits that it falls under the purview of the Director of Occupational Safety and Health Services 6. S. 3 of WIBA, Cap 236 provides that the Act shall apply to all employees, including employees employed by the Government, other than the armed forces, in the same way and to the same extent as if the Government were a private employer. S. 10 of WIBA Provides; 7. An employee who is involved in an accident resulting in the employee’s disablement or death is subject to the provisions of this Act, and entitled to the benefits provided under this Act, and 8. An employer is liable to pay compensation in accordance with the provisions of this Act to an employee injured while at work. 9. The provisions of S. 3 of WIBA are mandatory, there is no evidence that any of the agents of the appellant were in control of GKB 213 H. How the 2nd respondent was absolved and the appellant found wholly liable remains a puzzle. Those who lease vehicles to the Government are in no different footing compared to financiers of motor vehicles purchases whose names are registered jointly with the beneficial owners of such vehicles. They are, ordinarily not sued, even though motor vehicle records bear their names. If they were to be held liable for every accident involving their leased vehicles, I do not think any right thinking investor would engage in such business. The appellant challenged the court’s jurisdiction to hear the suit (see paragraph 6(g) and 11) of the statement of defence dated 7th July, 2021. 10. The trail court appreciated the challenge to its jurisdiction at page 3 of the judgment but citing the case of ***Rentco East Africa Ltd. v Dominic*** ***Mutua Ngonzi*** (Civil Appeal 45 of 2020) (2021) KEHC 1079 (KLR) it proceeded on the premise that it had the requisite jurisdiction. However, WIBA in S. 3 has expressly ousted jurisdiction of courts in claims for injuries involving parties who are in an employee/employer relationship. The above-cited authority was concerned with issues of liability in situations where ownership of a subject motor vehicle is not clear. The trial court seems to have shifted the burden of proof from the 1st respondent who was the claimant to the appellant suggesting that the failure to produce the lease agreement meant that the 1st respondent had proved his case notwithstanding his admission that he was a police officer who got injured in the line of duty. The burden of proof lied with the 1st respondent who was duty bound to proof his case on a balance of probabilities against the appellant and the 2nd respondent. This is expressly provided under the Evidence Act, Cap. 80 Laws of Kenya as quoted below; ***Burden of proof.*** S. 107 of the Evidence Act provides as follows, ***(1) “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.*** ***(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”*** ***Incidence of burden*** S. 108 provides***, “The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side.”*** ***Proof of particular fact*** S. 109 provides, ***“ The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”*** 1. It was obvious that the accident in question was a self-involved accident police officers who were on duty. They were the late James Ngatia, the 1st respondent and No. 232732, PC Tobias Modi Ajuang. Evidence in the record shows that the three were returning to Nyangusu police station after undertaking official duties at Ogembo Law Courts. Their accident, which sadly led to the demise of PC James Ngatia, was the subject of compensation under WIBA, 2007 (Cap. 236). It is most likely that they lodged their claims with the Director and took their chance with the appellant, a company that was remotely connected with their employment and scheme of work. Granted WIBA provides for a comprehensive package of benefits including insurance and medical covers and provision for dependents. 2. I do find that the trial court lacked the requisite jurisdiction to entertain the suit between the parties. No liability attaches to the appellant; it is the Government of Kenya, through the National Police Service, that is responsible in compensating the 1st respondent for the injuries suffered. It is the employer of both the 1st respondent and the late PC James Ngatia who caused the accident in question through acts of recklessness. For this reason, alone, the appeal must succeed in its entirety. The Appellant's argument, drawing on **Morgan v Launchbury [1972] 2 All ER 606** and the maxim qui facit per alium facit per se, is sound as a statement of principle: vicarious liability ordinarily requires an employer-employee or principal-agent relationship, and a registered owner who has genuinely relinquished a vehicle to the exclusive control of another, for that other's own purposes, is not thereby automatically fixed with liability for the negligence of the other's own employees appears sound in the circumstances of this case. The trial court should have downed its tools but it did not. 3. Having found that the trial court lacked jurisdiction, a determination on the 2nd issue becomes moot. It remains a matter for the Director of Occupational Safety and Health Services to determine. The final orders which I do issue is that I do allow the appellant’s appeal, set aside the judgment of Lower Court and the award of damages with costs to the appellant to be borne by the respondents both on appeal and before the trial court. 4. Right of Appeal within 30 days. **Dated, read and signed and delivered virtually this 16th day of July, 2026** **Richard K. Koech** **Judge** In the presence of; Mr. Nyasimi appearing virtually for the Appellant Mr. Omandi appearing virtually for the 1st Respondent No appearance for the 2nd Respondent Ms. Roselyne & Enock, court assistants present physically.