Norah Wambui Kinyumu & 1 other v Ahmad Motors Limited & 1 other

additional expenses. On 15th March 2019, the Deceased minor succumbed to the injuries sustained in the accident caused by the Defendants' negligence and carelessness. 3. The 1st Defendant entered appearance and filed a Statement of Defence dated24th March 2021 in which it denied the Plaintiff’s claim in toto and particularly that the 2nd Defendant was at any time material to this suit or at all the 1st Defendant’s driver, employee or agent and put the Plaintiffs to strict proof of the same. The 1st Defendant averred that it was in the business of importing and selling new and used motor vehicles. In the normal course of its business, the 1st Defendant sold and delivered the subject accident vehicle to one Edward Ireri Nyaga on 26th October 2015 for a price of Kshs.920,000/ =. The said Edward paid a deposit of Kshs.300,000/= and the balance of Kshs.620,000/= was payable by 12 equal monthly instalments of Kshs.51,667/= each. The said motor vehicle was to be transferred to the said Edward Nyaga upon full payment of the purchase price. Although the 1st Defendant remained the registered owner of the motor vehicle, the beneficial ownership possession and control of the motor vehicle had passed from the 1st Defendant to the said Edward Ireri Nyaga on 26th October 2015. The 1st Defendant prays that the Plaintiff’s suit be dismissed with costs. 4. The 2nd Defendant failed to enter appearance and to file a Statement of Defence. The Plaintiffs’ Evidence 5. The case was then set down for hearing on 3rd February 2025. The Plaintiffs’ Witness PW-1, Lionel Matata testified who substituted his Co-plaintiff Norah Wambui adopted Norah's witness statement dated 13th April 2022. He testified that the deceased was his son and Ahmad Motors Ltd is the owner of the motor vehicle that knocked down his late son. He stated that he knew the 2nd Defendant was sentenced for careless driving. 6. In cross examination he stated that the deceased child was five (5) years old at the time of the accident. The deceased was accompanied by his mother. PW1 did not witness the accident and did not know the 2nd Defendant. He testified that the 2nd Defendant is the one who committed the accident. He did not have evidence that the 2nd Defendant was an employee of the 1st Defendant. That the search showed the subject motor vehicle was owned by the 1st Defendant. He didn’t know whether the 1st Defendant had sold the motor vehicle to a third party. 7. In re-examination, he stated that the motor vehicle search shows the name of James Maina Muga Kipkorir Ruto and Ahmad Motors Ltd. Ahmad Motors Ltd was the registered owner. He agreed there was a sale agreement dated 26/10/2025 which did not have the name of Edward Ireri. The search was done eight (8) years from the date of the sale agreement. He stated that the sale agreement was not visible and the date and year therein had been tampered with. The search showed the owner of the motor vehicle as Ahmad Motors Limited. He then produced the documents listed in the Plaintiffs’ Supplementary Further List of Documents, which were admitted as Plaintiff Exhibits 1-12. The police abstract was marked for identification as MFI-3. The Plaintiffs’ exhibits are as follows:1. Limited grant ad litem ................PExt-1 2. A Motor Vehicle Search Receipt ...........PExt-2 3. Police Abstract, P3 Form.......PMFI-1 to PExt-3 4. Death Certificate...............PExt-4 5. Post mortem Report, Discharge Summary & Medical Reports PExt-5 6. Copy of Charge Sheet.......................PExt-6 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7163/eng@2026-03-24 2

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7. Bundle of receipts ..........................PExt-7 8. A copy of Birth Certificate- --PExt-8 9. Copy of School report card.........................PExt-9 10. Demand Letter.................PExt-10 11. Notice to Insurance Company .....................PExt-11 12. Highlighted CBK Indicative Exchange Rates for all payments made in Rupees and USD .............PExt-12. 8. PW-2, Corporal Gideon Cheptinde (No. 83568) testified and stated that he had the police abstract dated 03/03/2016 of a victim Blasio Yomu. The accident occurred on 29/02/2016 at about 1615Hrs near St. Jude Church at Masii-Tawa Road. It involved a motor vehicle registration No. KCE 802T Toyota Probox and a pedestrian (victim). The driver Antony Nzuki was driving from Wote towards Matuu. The motor vehicle knocked down the victim who was a student at Nuru Academy. He stated that the driver Antony Nzuki was charged in Traffic Case No. 215 of 2016 PCR 223 of 2016. He produced the police abstract as PExt.3. 9. In cross examination, he confirmed that he was not the primary investigating officer in the matter, the Investigating Officer one Ndirangu had been transferred. He stated that the driver of the subject motor vehicle had been charged in Traffic Case No. 215 of 2016, and was found guilty. He only had the charge sheet and the police abstract. He confirmed that paragraph 1 of the police abstract did not give the name of the owner of the vehicle. The owner ought to have been indicated. PW-2 did not have the police investigation file and stated that he could try and trace it. 10. The 1st Defendant’s Counsel, Mr. Omollo then applied for PW-2 to be stood down to have him get the police file so as to find out who is the owner of the motor vehicle in question as the same was crucial in this case. The Plaintiffs’ Advocate objected to the application arguing that a copy of the search show who the owner is and that it is not the duty of the police to give details of the owner of the motor vehicle. Upon considering the submissions by parties’ counsel on the application to stand down PW-2 and the fact that he was a police officer who had confirmed that given time, he could trace the police file, the court allowed the application and PW-2 was stood down. 11. On 23rd July 2025, PW-2 attended court and informed court that he was not able to retrieve the police file and that the police file does not show who was the beneficial owner and or insured owner. 12. In re-examination, PW-2 maintained that he was not the Investigation Officer. The Plaintiffs then closed their case. 1st Defendant’s evidence 13. The 1st Defendant called one witness DW-1, Mudasar Ahmad. He testified that he is the Director of the 1st Defendant. His witness statement dated 13/12/2023 was adopted as his evidence in chief and documents on his list of documents of even date produced as 1st Defendant’s exhibits. The sale agreement was produced as DExt.1. He stated that at the time of the accident he had sold the accident motor vehicle on 26/10/2013. That on 29/02/2016 the vehicle was involved in an accident being driven by one Antony Nzuki Kavusia, the 2nd Defendant. He stated that the motor vehicle was sold to Edward Ireri Nyaga at Kshs.920,000/=. He paid a deposit of Kshs.300,000/= in cash and the balance of 620,000/= was to be paid in twelve monthly instalments of Kshs.51,667/=. The 1st instalment was paid on 02/01/2016 and the last on 03/05/2016. There was a balance yet to be paid. He stated that they https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7163/eng@2026-03-24 3

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retain the logbook as security and once the balance is cleared, they transfer the vehicle to the purchaser’s name. He stated that the buyer who was using the car was responsible for the accident. He denied knowing Antony Nzuki Kivusia, the 1st Defendant who was neither their employee nor driving the vehicle for the company, 2nd Defendant. 14. During cross-examination, DW-1 stated that the agreement is dated 26/10/2016. The dates on the agreement and the terms and conditions are not altered but there was a correction done. He couldn’t see anything on the terms and conditions. He had not produced the Mpesa statements. Michael was the witness to the sale transaction. He was not a witness before court. He stated that as of 29/02/20216 which is the date of the accident, Ahmed Motors Ltd was the registered owner. The Plaintiffs were not privy to the sale transaction. The buyer did not clear the money and therefore they did not transfer the motor vehicle to him. That they served the Sale agreement once they received the summons. They did not file third Party proceedings. 15. In re-examination, he stated that Micheal was a witness for the buyer and not their witness. The defence case was then closed. 16. Parties were directed to file and exchange submissions on the main suit. Plaintiffs’ Submissions 17. The Plaintiffs submitted on Liability and Quantum. As regards Liability the Plaintiff addressed the following issues:- 18. i. Who was the registered owner of the subject motor vehicle as at the time of the accident? ii. The Plaintiff's right to sue and the Defendant's failure to enjoin a third party iii. Based on the forgoing, who bears liability for the accident? The Plaintiffs submitted that it is an established precedent that a child below the age of 10 years prima facie, cannot be held guilty of contributory negligence, as was held in Peris Onduso Omondi vs. Tectura International Ltd & Anor (2012) eKLR. Who was the registered owner of the subject motor vehicle as at the time of the accident? 19. The Plaintiffs submitted that at the time of the accident, Motor Vehicle Registration Number KCE 802T was registered in the name of the 1st Defendant, Ahmad Motors Limited, as evidenced by the official motor vehicle search dated 2nd August 2021 and Produced as Plaintiffs’ Exhibit 2. This search, obtained from the National Transport and Safety Authority (NTSA), constitutes prima facie proof of ownership under Kenyan law. The Plaintiffs cited Section 8 of the Traffic Act which stipulates that: “ The person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner." 20. That no transfer of the said motor vehicle had been effected to the alleged purchaser, one Edward Ireri Nyaga. The name of this purported buyer does not appear anywhere in the official search. The 1st Defendant did not produce M-pesa statements, witnesses to the alleged sale agreement, transfer forms, copy of logbook, or any NTSA transaction records to support the claim of having sold the vehicle prior to the accident. Had a valid transfer been effected, the NTSA records would have reflected the change of ownership. Given that the sale agreement was not proved. A mere allegation does not suffice. The Plaintiffs were entitled to rely on the official motor vehicle search, and it is unreasonable to expect them to investigate undocumented private sales which are not registered or traceable. If indeed https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7163/eng@2026-03-24 4

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there was a purchaser as alleged, there was nothing easier than the defendants to bring forth such said parties before this Honourable Court. The Plaintiffs posed the question: How would the Plaintiffs have known that the motor vehicle had allegedly been sold, in the absence of a formal transfer? The answer is they could not. It was submitted that the statutory record was the only objective reference point. That the 1st Defendant has not discharged this burden and their position is based entirely on allegations of a sale supported by questionable documentation as the dates on that alleged agreement are evidently altered. Consequently, liability cannot be shifted to an unnamed third party simply by assertion. That as per the provisions of Section 8 of the Traffic Act, in the present case, no contrary proof has been offered. That the 1st Defendant did not take steps to join Edward Ireri Nyaga as a third party to these proceedings. The law places the burden on a party who alleges that another person ought to bear liability to initiate third-party proceedings against them. The Plaintiff cannot be faulted for failing to pursue a person whose connection to the vehicle was neither reflected in the official records nor brought into the suit by the Defendant. 21. On the issue of the incomplete police abstract, the Plaintiffs submitted that PW- 2 (the Investigating Officer) confirmed during cross-examination that the abstract had a blank space for the registered owner. Subsequently, the Defence sought and obtained an adjournment to allow production of the full police file. However, the Investigating Officer returned to court and confirmed that the police file could not be found. The failure by the police to indicate the vehicle's ownership in the abstract or to retrieve the police file cannot be used to displace the Plaintiff's position, as the Plaintiffs had already demonstrated ownership through an NTSA search (Plaintiffs Exhibit-2). Any resulting doubt must be resolved against the 1st Defendant, who knew of the alleged buyer but failed to involve him in the case. The Plaintiffs submit that a Police Abstract is merely prima facie evidence of the occurrence of an accident but does not in itself prove ownership. The results of police investigations, which may assist in the determination of liability, are typically found in the police file. However, ownership of a motor vehicle is exclusively established through a certificate of official search from the National Transport and Safety Authority (NTSA), as provided under Section 8 of the Traffic Act (Cap. 403, Laws of Kenya). It was submitted that this position has been reaffirmed in several judicial decisions. In Thuranira Karauri v Agnes Ncheche [1997] eKLR the Court when coming up with its determination held that the police abstract form is not, on its own, proof of ownership. It must be supported by a certificate of official search or other credible documentation showing the registered owner. Therefore, the Defendant cannot run away from the issue of ownership by relying solely on the contents of a police abstract. The Plaintiffs maintained that the law is clear that proof of ownership must be by way of an official search, and absent such evidence, any denial of ownership remains unsubstantiated. The Plaintiff's right to sue and the Defendant's failure to enjoin a third party 22. The Plaintiffs submitted that under Order 1 Rule 3 of the Civil Procedure Rules, a Plaintiff is permitted to sue all persons against whom relief is alleged to exist, whether jointly, severally, or in the alternative. The Plaintiffs correctly sued the 1st Defendant based on the fact that they appeared as the registered owner of the subject motor vehicle at the time of the accident. The fact of registration is an objective legal basis and not speculative. If indeed the 1st Defendant believed that another person was the beneficial or legal owner, they ought to have pursued third-party proceedings in accordance with Order 1 Rule 15 of the Civil Procedure Rules. This was never done. It is therefore an abuse of process for the 1st Defendant to now seek to deflect liability by pointing to an unnamed, unverified third party without having followed the proper procedural avenues. The Plaintiffs should not be made to suffer the consequences of: a) The 1st Defendant's failure to formally transfer the vehicle, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7163/eng@2026-03-24 5

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23. b) The police's omission in completing the abstract, and c) The Defendant's failure to take timely procedural steps to enjoin the alleged "real owner". That courts have repeatedly held that a party cannot be visited with the omissions or failures of others, particularly where that party has acted diligently, as the Plaintiffs have done in this matter. Accordingly, the Plaintiffs urge the Court to find that the 1st Defendant was the registered owner of the motor vehicle at the time of the accident and is therefore legally liable, vicariously or otherwise, for the acts of the 2nd Defendant. The Plaintiffs relied on the cases of Obala v Okello & 2 Others [2022] КЕНC 15762 (High Court, Nairobi) the court held: “ I find that the appellant was under an obligation, if she felt that someone else was responsible for or contributed to her predicament in the case, to enjoin that someone else as a third party, following the procedure laid out in the law." 24. In Kenya Commercial Bank v Suntra Investment Bank Ltd [2015] eKLR, the court reiterated: “ In law, a third party is enjoined in a suit at the instance of the Defendant and through the set procedure; liability between the Defendant and the third party is determined between the Defendant and the third party..." 25. Based on the forgoing, who bears liability for the accident? The Plaintiffs submit that it is not in dispute that the 1st Defendant was the registered owner of the motor vehicle at the time of the accident, as confirmed by the official records from the NTSA. Pursuant to the provisions of Section 8 of the Traffic Act (Cap 403 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, in the absence of any formal third-party proceedings under Order 1 Rule 15, the 1st Defendant remains legally liable as the registered owner. The 1st Defendant's attempt to deflect liability to an unnamed and unverified third party is therefore procedurally and substantively defective. Reliance was placed on the case of Obala v Okello & 2 Others [2022] КЕНСC 15762, (Supra) where the court held: “ A defendant who wishes to shift liability to a third party must follow the prescribed procedure. The burden to enjoin such a party lies squarely with the defendant." 26. Similarly, in Kenya Commercial Bank v Suntra Investment Bank Ltd [2015] eKLR (Supra), the court emphasized that: “ A third party is enjoined at the instance of the Defendant and through the set procedure under Order 1 Rule 15. Mere allegations are not enough." 27. It is the Plaintiffs' submission that, having failed to rebut the statutory presumption of ownership and liability, and having failed to initiate third-party proceedings, the 1st Defendant remains legally liable vicariously or otherwise for the acts of the 2nd Defendant. As regards Quantum, the Plaintiffs submitted on:iv.) Whether the Plaintiffs are entitled to damages from the Defendants 28. The Plaintiffs submitted that the deceased was a minor, still in school and entirely dependent on the care and guidance of the Plaintiffs, his mother and father. Although he had not yet entered the workforce, the law recognises that parents of a deceased child suffer a tangible loss, not only emotionally but also financially, in terms of the child's potential to support them in future years. The applicable https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7163/eng@2026-03-24 6

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heads of damages fall under the Law Reform Act and the Fatal Accidents Act, and the Plaintiffs urge this Court to make awards based on established judicial precedent involving similar circumstances. Pain and Suffering (Law Reform Act (Chapter 26) Laws of Kenya 29. The child did not die instantaneously, and the evidence suggests that there was a brief period during which the child experienced pain before succumbing to the injuries. In such instances, courts have made modest but meaningful awards under this head. The Plaintiffs propose a sum of Kshs.100,000 under this head. SUBDIVISION - Loss of expectation of life (Law Reform Act (Chapter 26) Laws of Kenya 30. The deceased was a young, healthy child with his whole life ahead of him aged 5 years old at the time of his untimely death. The law recognizes the value of such a life that has been prematurely cut short. Awards under this head are generally conventional and serve to acknowledge the deprivation of life's full potential. The Plaintiffs urge the Court to award Kshs.400,000 under this head. Reliance was placed in Ali Sheikh Ahmed & another v NKJ & another (Suing on their own behalf and in their capacity as the administrators of the estate of the late JMJ) (2017) eKLR, the court awarded Kshs.200,000/= for the loss of expectation of life for a young boy aged 6 years. Loss of dependency (Fatal Accident Act) Chapter 32 Laws of Kenya 31. The deceased was the Plaintiffs' son. At the time of his untimely death, he was at P.C.E.A. St. Stephens Academy Voi. From the report book the deceased's performance was above average. The Plaintiffs aver that they were willing to go to great heights in educating him. In the Kenyan society in which we live in, parents have expectations that once their children mature and gain employment, they will in one way or another assist them financially or materially to get along in life, as they advance in age. The Court of Appeal and superior courts have, in similar circumstances, awarded between Kshs.1,000,000 and Kshs.1,500,000 to reflect this loss of potential financial support. Reference was made on the case of Kyalo (Suing as the Legal Administrator of the Estate of Samuel Muwo Kyalo - Deceased) v Orangi (Civil Appeal E013 of 2022) [2024] KEHC 5361 (KLR) (17 May 2024) (Judgment), the court awarded Kshs.1,000,000 for a 7- year-old school-going child. The Plaintiffs submitted that in light of the deceased's age, health, and the bright future he was expected to have, they urge the court to award a lump sum of Kshs.1,500,000 for loss of dependency. Special damages 32. The Plaintiffs submitted that it is trite law that special damages must not only be specifically pleaded but that they must be strictly proved. The Plaintiff pleads for special damages and produces the following species of receipts made up as follows: a) Motor Vehicle search- Kshs.500; b) Transport charges- Kshs.70,000; c) Visa charges- Kshs.50,000; d) Treatment expenses (both in Kenya and India)- Kshs.23,199,532.19; e) Air travel expenses for specialized treatment- Kshs.3,208,878.35 f) Court filing fees for limited grant- Kshs.1,950 g) Advocate's fees in obtaining the Limited grant- Kshs.30,000 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7163/eng@2026-03-24 7

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h) Post-mortem charges-Kshs.18,000 i) Police Abstract- Kshs.200 j) P3 form- Kshs.1,500 k) Funeral expenses- Kshs.84,900 Total Kshs.26,668,460.54 33. In conclusion, the Plaintiffs submitted that in light of the foregoing, they have demonstrated that the deceased minor was fatally injured due to the negligence of the 2nd Defendant while driving motor vehicle registration number KCE 802T, which was registered in the name of the 1st Defendant at the material time. The 1st Defendant's attempt to disclaim liability by alleging a prior sale of the vehicle without joining the alleged buyer as a third party falls short both procedurally and substantively. The Plaintiff has successfully discharged the evidentiary burden required under both the Fatal Accidents Act and the Law Reform Act, and the proposed awards above mentioned reflect established jurisprudence, judicial discretion, and the principles of fairness and proportionality in fatal injury claims involving minors. Accordingly, they respectfully urge this Court to enter judgment in favour of the Plaintiffs and costs of the suit be awarded to the Plaintiff. 1st Defendant’s submissions 34. The 1st Defendant submitted that the only reason the Plaintiffs have filed this suit against the 1st Defendant is that upon conducting a search of the Register of motor vehicles it was established that the motor vehicle was registered in the name of the 1st Defendant. 35. The 1st Defendant submitted that its case as presented by its pleadings and documents and the testimony of its witness is that the 1st Defendant is in the business of buying and selling new and used motor vehicles. In the normal course of its business on 26th October 2015 the 1st Defendant sold and delivered the motor vehicle to one EDWARD IRERI NYAGA (hereinafter called the buyer) by an agreement in writing which agreement was produced in evidence. The buyer was to pay the purchase price by instalments and the transfer of ownership was to be effected upon full payment of the purchase price. So even though the 1st Defendant remained registered as the owner of the motor vehicle the beneficial ownership possession and control of the motor vehicle had been transferred to the buyer since 26th October 2015. The buyer had not paid the full purchase price as confirmed in the customer ledger produced by the 1st Defendant. 36. It was submitted that on the date of the alleged accident that is to say on 29th February 2016 the motor vehicle was not being driven by an employee or agent of the 1st Defendant neither was the motor vehicle being used for the benefit of the 1st Defendant. Accordingly, the 1st Defendant is not vicariously liable for the alleged negligence on the part of the driver of the motor vehicle. The 1st Defendant stated that the 2nd Defendant is not known to the 1st Defendant and he was neither an employee or agent of the 1st Defendant. 37. The 1st Defendant further submitted that it being a corporate entity, it was obviously not driving the motor vehicle. The 1st Defendant can only be liable if the motor vehicle was being driven by an employee or agent of the 1st Defendant. This is the doctrine of vicarious liability. PWI confirmed that he had no evidence that the driver of the motor vehicle was an employee or agent of the 1st Defendant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7163/eng@2026-03-24 8

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38. That there is no legal basis upon which the 1st Defendant can be liable for the negligence of the driver who was not an employee of the 1st Defendant. 39. The 1st Defendant also cited Section 8 of the Traffic Act Cap 403 of the Laws of Kenya provides as follows: “ The person in whose name a vehicle is registered shall unless the contrary is proved be deemed to be the owner of the vehicle” 40. It is submitted that in this case it has been proved by the testimony of the police (PW-1) that the 1st Defendant was the owner of the motor vehicle having taken out an insurance policy thereon with Direct Line Assurance Company Limited. That it has also been proved by the testimony of the 1st Defendant's witness that the 1st Defendant had sold the motor vehicle to a third party several months before the accident that gave rise to the suit. 41. The 1st Defendant submitted that in law, liability cannot be based merely on the registered ownership of a motor vehicle. Reliance was placed on the case of Ormrod v Crosville Motor Services Ltd (1954) 2 All ER 753 at page 755 the court stated as follows: “ The law puts a special responsibility on the owner of a vehicle who allows it to go on the road in charge of someone else, no matter whether it is his servant, his friend or anyone else. If it's being used wholly or partly by the owner's business or for the owner's purpose, the owner is liable for negligence on the part of the driver. The owner only escapes liability when he lends it or hires it to a third person to be used for purposes in which the owner has no interest or concern." 42. In Ali Lali Khalifa & Others v Pollmans Tours & Safaris and 2 others (2003) eKLR it was held that: “ if it can be demonstrated that a registered owner of a motor vehicle hired it out to a third party or the said vehicle was used in the circumstances which do not allow for the doctrine of vicarious liability on the part of the registered owner, to apply, then the latter is not liable." 43. In Anyanzwa v Gasperis (1981) eKLR the Court of Appeal set aside a judgement of the High Court because though driving with the owner's permission the driver was not the owner's servant, the driver was not driving at the owners request express or implied, the owners had not delegated any task or duty to the driver and the owner had no interest or concern in the purpose for which the vehicle was being driven. 44. The 1st Defendant further submitted that in the present case, on all fours with the cited case of Anyanzwa vs Gasperisu (supra), there is no evidence that the driver of motor vehicle was driving with permission of the 1st Defendant. There is no evidence that the said driver was driving at the 1st Defendant's express or implied request. There is no evidence that the 1st Defendant had delegated any task or duty to that driver and the motor vehicle was not being driven for the benefit of the 1st Defendant. In the circumstances, the 1st Defendant submits that there is no evidence upon which this court can find that the 1st Defendant is vicariously liable for the negligence of that driver. 45. Finally, in Morgans V Lauchbury and others (1972) All ER 606 it was held -that; “ In order to fix liability on the owner of a car for the negligence of its driver, it was necessary to show either that the driver was the owner's servant or that, at the material time, the driver was acting on the owner's behalf as his agent to establish the existence of agency relationship https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7163/eng@2026-03-24 9

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it was necessary to show that the driver was using the car at the owner's request, express or implied, or on his instructions, and was doing so in performance of the task or duty thereby delegated to him by the owner. The fact that the driver was using the car with the owner's permission and that the purpose for which the car was being used was one in which the owner had an interest or concern, was not sufficient to establish vicarious liability" 46. In light of the foregoing, the 1st Defendant submitted that there is no evidence upon which the it can be found to be vicariously liable for the alleged negligence of the driver of the motor vehicle. 47. On quantum, the 1st Defendant submitted that although it is its submission that the 1st Defendant is not liable it would nonetheless proceed to submit on quantum of damages. Pain and Suffering 48. The 1st Defendant concurs with the Plaintiff's proposal of Kshs.100,000/= for pain suffering. Loss of expectation of life 49. The 1st Defendant submitted that the Courts usually give a conventional sum for loss of expectation of life. In Kyalo (suing as the legal administrator of the Estate of Samuel Muwo Kyalo (deceased) V Orangi (Civil Appeal No, E013 OF 2020) (2024] KEHC 5361 (KLR) D Kernei J awarded Kshs.100,000/= on 17th May 2024 for loss of expectation of life. Therefore. a conventional sum of Kshs.100.000/= would be adequate. Loss of dependency 50. The 1st Defendant submitted that it would accept the reasoning given by D. Kemei J in the cited case of Kyalo V Orangi (supra) in awarding Kshs.1,000,000/= for loss of dependency even though the deceased was a minor with no income. Special damages 51. The 1st Defendant submitted that the Plaintiffs have claimed various sums of money as special damages. It is trite law special damages must be specifically pleaded and specifically proved. The Plaintiff claims a sum of Kshs.23,199,532.19 being treatment expenses. The Plaintiff produced various invoices which are unsigned but failed to provide any evidence by way of receipts to prove that the Plaintiff paid the alleged sums. 52. The 1st Defendant submitted that the claim for special damages in the sums claimed by the Plaintiffs have not been proved and the same cannot be awarded. 53. In the upshot, the 1st Defendant submitted that the Plaintiffs have failed to prove liability on the part of the 1st Defendant. The Plaintiffs’ suit against the 1st Defendant should be dismissed with costs. Analysis and determination A. Liability 54. I have carefully considered the Parties pleadings, the evidence tendered at hearing and the submissions filed by Counsel for the Plaintiffs and the 1st Defendant in the absence of the 2nd Defendant’s pleadings or submissions. 55. It is my considered view that the major contested issue in this case is, who is liable for the accident herein and this is what this court will determine. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7163/eng@2026-03-24 10

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56. From the pleadings and evidence on record, it is not disputed thatBlasio Yomu Yako (Deceased) a minor aged 5 years sustained fatal injuries following an accident that occurredon 29th February, 2016 at 4.15pm or thereabouts along Masii-Tawa Road near St Jude Catholic Church when the 2nd Defendant Antony Nzuki Kavusia who was a driver of the motor vehicle Registration Number KCE 802T, carelessly and negligently caused the said vehicle to swerve out of its lawful cause and hit the Deceased who was walking along the said road (off the tarmac). 57. It is also not disputed that the copy of records dated 2nd August 2021 show the 1st Defendant as the registered or rather the legal owner of motor vehicle Registration Number KCE 802T. 58. The Plaintiffs stated that the said driver was charged in Machakos Traffic Case No. 215 of 2016, and was found guilty and sentenced although the traffic case proceedings or the judgement were never presented before court for reference. 59. The Plaintiffs contend that they were entitled to rely on the official motor vehicle search, and it is unreasonable to expect them to investigate undocumented private sales which are not registered or traceable. If indeed there was a purchaser as alleged, there was nothing easier than the defendants to bring forth such said parties before this Honourable Court. The Plaintiffs posed the question: How would the Plaintiffs have known that the motor vehicle had allegedly been sold, in the absence of a formal transfer? The answer is they could not. It was submitted that the statutory record was the only objective reference point. That the 1st Defendant has not discharged this burden and their position is based entirely on allegations of a sale supported by questionable documentation as the dates on that alleged agreement are evidently altered. Consequently, liability cannot be shifted to an unnamed third party simply by assertion. That as per the provisions of Section 8 of the Traffic Act, in the present case, no contrary proof has been offered. That the 1st Defendant did not take steps to join Edward Ireri Nyaga as a third party to these proceedings. The law places the burden on a party who alleges that another person ought to bear liability to initiate third-party proceedings against them. The Plaintiffs cannot be faulted for failing to pursue a person whose connection to the vehicle was neither reflected in the official records nor brought into the suit by the Defendant. 60. The Plaintiffs argue that they have demonstrated that the deceased minor was fatally injured due to the negligence of the 2nd Defendant while driving motor vehicle registration number KCE 802T, which was registered in the name of the 1st Defendant at the material time. 61. On the other hand, the 1st Defendant argue that the only reason the Plaintiffs have filed this suit against the 1st Defendant is that upon conducting a search of the Register of motor vehicles it was established that the motor vehicle was registered in the name of the 1st Defendant. 62. The 1st Defendant submitted that its case as presented by its pleadings and documents and the testimony of its witness is that the 1st Defendant is in the business of buying and selling new and used motor vehicles. In the normal course of its business on 26th October 2015 the 1st Defendant sold and delivered the motor vehicle to one EDWARD IRERI NYAGA (hereinafter called the buyer) by an agreement in writing which agreement was produced in evidence. The buyer was to pay the purchase price by instalments and the transfer of ownership was to be effected upon full payment of the purchase price. So even though the 1st Defendant remained registered as the owner of the motor vehicle the beneficial ownership possession and control of the motor vehicle had been transferred to the buyer since 26th October 2015. The buyer had not paid the full purchase price as confirmed in the customer ledger produced by the 1st Defendant. 63. The 1st Defendant denied that on the date of the alleged accident that is to say on 29th February 2016 the motor vehicle was not being driven by an employee or agent of the 1st Defendant neither was https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7163/eng@2026-03-24 11

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the motor vehicle being used for the benefit of the 1st Defendant. Accordingly, the 1st Defendant is not vicariously liable for the alleged negligence on the part of the driver of the motor vehicle. The 1st Defendant stated that the 2nd Defendant is not known to the 1st Defendant and he was neither an employee or agent of the 1st Defendant. 64. The 1st Defendant further submitted that it being a corporate entity, it was obviously not driving the motor vehicle. The 1st Defendant can only be liable if the motor vehicle was being driven by an employee or agent of the 1st Defendant. This is the doctrine of vicarious liability. That PWI confirmed that he had no evidence that the driver of the motor vehicle was an employee or agent of the 1st Defendant. 65. The 1st Defendant’s position is that there is no legal basis upon which the it can be liable for the negligence of the driver who was not its employee or agent. The 1st Defendant also cited Section 8 of the Traffic Act Cap 403 of the Laws of Kenya referred to herein above by the Plaintiffs. 66. It is correct that 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.” 67. However, it is settled that although a copy of record is prima facie proof of ownership, the presumption is rebuttable. The Court of Appeal in Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] eKLR, emphasized this fact when it observed that: “ Section 8 of the Traffic Act ………has been interpreted to mean that the registration of the motor-vehicle is not conclusive proof of ownership.” 68. As regards the principle of vicarious liability, the Court of Appeal observed in the case of John Nderi Wamugi v Ruhesh Okumu Otiangala & 2 others [2015] eKLR; “ “ 14. The main issue that fell for determination by the first appellate court was whether, in the aforesaid circumstances, the appellant was vicariously liable for the negligent acts of the 2nd respondent, the lawful driver of the motor vehicle. Black’s Law Dictionary, 9th edition at page 998 defines vicarious liability in the following words: “Liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties.” 15. In HCM Anyanzwa & 2 Others v Luigi De Casper & Another [1981] KLR 10, this Court held that: “vicarious liability depends not on ownership but on the delegation of tasks or duty”. ”We believe the learned judge misdirected himself when he addressed himself to the issue of legal ownership of the motor vehicle in determining whether the appellant was vicariously liable for the tort of negligence committed by the second respondent, who was an employee of the third respondent. It is the third respondent who had supervisory power over his driver and not the appellant. The appellant cannot therefore be held to be vicariously liable. 16. The reason behind the principle of vicarious liability is to place liability on the party who should in law bear it and to peg it on legal ownership of a motor https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7163/eng@2026-03-24 12

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vehicle in a case of this nature, to the total exclusion of employer/employee relationship, would amount to grave injustice to the appellant.” (sic) 69. Guided by the above decisions and applying the same to the instant case, it is clear that the Plaintiffs cannot place liability whether vicarious or otherwise on the 1st Defendant on the basis that the copy of record that showed the 1st Defendant as the registered owner. In any event, even if the 1st Defendant was truly the legal owner of motor vehicle registration number KCE 802T, still the Plaintiffs had to demonstrate that the 2nd Defendant was a driver, servant and or agent of the 1st Defendant driving the vehicle herein on behalf of the 1st Defendant which the Plaintiffs failed to do. In his testimony the PW-1 confirmed that the 2nd Defendant was not the 1st Defendant’s driver. Vicarious liability was therefore not established on the evidence, the case of Muwonge –vs- Attorney-General of Uganda [1967] EA 17 set out the guiding principles on the application of the doctrine of vicarious liability were enunciated by the Court of Appeal for East Africa. The requirement was that the servant must have been carrying out what he was required to do, even if he carried it out in a criminal manner. That was the only situation in which a master could be held vicariously liable for the acts of his servant. 70. It is also my finding that based on the provisions of Section 8 of the Traffic Act, the 1st Defendant proved to the contrary that they had sold the accident vehicle to a third party and thus actual ownership of the same had changed hand. There is no doubt that the 2nd Defendant was not an employee, servant or agent of the 1st Defendant at the time of the accident herein. 71. In addition, the lacking of details of the beneficial or insured owner of the subject vehicle at the time of the accident and circumstances surrounding the police investigation file leaves a lot to be desired. If in deed the driver (2nd Defendant) was charged and even found guilty and sentenced, why was it so difficult for the Investigating Officer not to obtain details of the actual beneficial or insured owner from this driver in the Traffic case, unless the said driver himself was the beneficial or insured owner and thus properly sued. Again, why didn’t the Plaintiffs or the investigating officer attempt to get to know the insured owner through the Insurance Cover sticker on the vehicle at the time of the accident. 72. My considered view is that taking out of third party proceedings by the 1st Defendant to join Edward Ireri Nyaga as a third party to these proceedings as claimed by the Plaintiffs was not necessary and relevant in the circumstances of this case the current owner having not been disclosed in the police abstract which was very crucial to this case. 73. The law puts a special responsibility on the owner of a vehicle who allows it to go on the road in charge of someone else, no matter whether it is his servant, his friend or anyone else. If it's being used wholly or partly by the owner's business or for the owner's purpose, the owner is liable for negligence on the part of the driver. The owner only escapes liability when he lends it or hires it to a third person to be used for purposes in which the owner has no interest or concern. See Ormrod v Crosville Motor Services Ltd (supra) 74. The reason behind the principle of vicarious liability is to place liability on the party who should in law bear it and to peg it on legal ownership of a motor vehicle in a case like the instant one, to the total exclusion of employer/employee or master/agent relationship between the 2nd Defendant and the 1st Defendant would amount to grave injustice to the 1st Defendant. 75. The upshot is that I find the 2nd Defendant 100% liable in negligence and in occasioning the accident herein. The 1st Defendant is exonerated from any blame for the occurrence of the accident. B. Quantum 76. The applicable heads of damages in this case fall under the Law Reform Act and the Fatal Accidents Act. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7163/eng@2026-03-24 13

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77. The approach taken by courts in the assessment of damages is that comparable injuries (both personal and fatal) should as far as possible be compensated by comparable awards although the court should bear in mind that no two cases are exactly the same. The court will also consider factors such as the state of the economy and the rate of inflation in its assessment of damages. (See Stanley Maore v Geoffrey Mwenda [2004] eKLR and Ugenya Bus Service v Gachoki [1982] eKLR). 78. As per the pleadings, the evidence tendered and as submitted by the Plaintiffs, at the time of his untimely death, Blasio Yomu Yako was a pupil at P.C.E.A. St. Stephens Academy Voi. From the report book the deceased's performance was above average. The Plaintiffs aver that they were willing to go to great heights in educating him. In the Kenyan society in which we live in, parents have expectations that once their children mature and gain employment, they will in one way or another assist them financially or materially to get along in life, as they advance in age. Pain and Suffering (Law Reform Act (Chapter 26) Laws of Kenya 79. The deceased child did not die instantaneously, and the evidence show that there was a passage of time during which the child experienced untold suffering and pain before succumbing to the injuries. In such instances, courts have made modest but meaningful awards under this head. I will therefore award a sum of Kshs.100,000 under this head. Loss of expectation of life (Law Reform Act (Chapter 26) Laws of Kenya 80. The deceased was a young, healthy child with his whole life ahead of him aged 5 years old at the time of his untimely death. The law recognizes the value of such a life that has been prematurely cut short. Awards under this head are generally conventional and serve to acknowledge the deprivation of life's full potential. The Plaintiffs urge the Court to award Kshs.400,000 under this head while the 1st Defendant propose Kshs.100,000/=. The Plaintiffs relied on the case of Ali Sheikh Ahmed & another v NKJ & another (Suing on their own behalf and in their capacity as the administrators of the estate of the late J M J) (2017) eKLR, the court awarded Kshs.200,000/= for the loss of expectation of life for a young boy aged 6 years. Guided by the above decision cited by the Plaintiff, I will similarly award Kshs.200,000/= under this head. Loss of dependency (Fatal Accident Act) Chapter 32 Laws of Kenya 81. The Court of Appeal and superior courts have, in circumstances where the deceased are children or persons without a quantified income, made global awards of between Kshs.1,000,000 and Kshs.1,500,000 to reflect this loss of potential financial support. In Kyalo (Suing as the Legal Administrator of the Estate of Samuel Muwo Kyalo - Deceased) v Orangi (Civil Appeal E013 of 2022) [2024] KЕНС 5361 (KLR) (17 May 2024) (Judgment), the court awarded Kshs.1,000,000 for a 7- yearold school-going child. The Plaintiffs proposed that in light of the deceased's age, health, and the bright future he was expected to have, an award for a lump sum of Kshs.1,500,000 for loss of dependency would be adequate while the 1st Defendant proposed Kshs.1,000,000/=. Guided also by the cited case of Kyalo (supra) I will award Kshs.1,300,000/= under this head. Special damages 82. It is trite law that special damages must not only be specifically pleaded but that they must be strictly proved. The Plaintiffs pleaded for special damages and produced the following documents in support of special damages: a) Motor Vehicle search- Kshs.500; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7163/eng@2026-03-24 14

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b) Transport charges- Kshs.70,000; c) Visa charges- Kshs.50,000; d) Treatment expenses (both in Kenya and India)- Kshs.23,199,532.19; e) Air travel expenses for specialized treatment- Kshs.3,208,878.35 f) Court filing fees for limited grant- Kshs.1,950 g) Advocate's fees in obtaining the Limited grantKshs.30,000 h) Post-mortem charges-Kshs.18,000 i) Police Abstract- Kshs.200 j) P3 form- Kshs.1,500 k) Funeral expenses- Kshs.84,900 Total Kshs.26,668,460.54 83. The 1st Defendant submitted that the Plaintiffs have claimed various sums of money as special damages. It is trite law special damages must be specifically pleaded and specifically proved. The Plaintiffs claim a sum of Kshs.23,199,532.19 being treatment expenses. The Plaintiff produced various invoices which are unsigned but failed to provide any evidence by way of receipts to prove that the Plaintiff paid the alleged sums. 84. The 1st Defendant submitted that the claim for special damages in the sums claimed by the Plaintiffs have not been proved and the same cannot be awarded. 85. I have perused through the documents presented by the Plaintiffs on the claim for special damages and I have established that the Plaintiffs incurred the expenses which were pleaded as well as proved by the documents produced in evidence. The said documents were not challenged or objected to at the hearing. I will therefore award the Plaintiffs special damages of Kshs.26,668,460.54 as pleaded and proved. 86. The Plaintiffs will also have the costs of this suit and interest at court rates from the date of this judgement until payment in full. 87. The court grants a stay of execution for 30 days from the date of this judgement. 88. It is so ordered. JUDGEMENT WRITTEN, SIGNED & DATED AT MACHAKOS THIS 24TH MARCH 2026 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 24TH MARCH 2026 In the presence of : Ms Kibii for Plaintiffs Mr. Omollo for 1st Defendant Absent for 2nd Defendant Milly- Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7163/eng@2026-03-24 15

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