Auto Industries Limited v Boniface Namikasa Wambisi & 3 others

enjoin the 3rd party into the proceedings;- the defendant did not plead or pray for indemnity;- The defendant has no privity of contract or agency with the 3rd third party;- It was the 1st third party that brought in the 3rd third party under third party proceedings, not the appellant. (3) The learned magistrate erred in law and fact by placing reliance on inconclusive and unsubstantiated police evidence. The police officer:-- did not investigate the accident and was not the investigating officer;- had no sketch plan, no police file and no accident analysis;- Could not identify the rider or attribute blame;- Her evidence was entirely hearsay and non-probative, and yet the court improperly relied on it to bolster the plaintiffs case. (4) The learned magistrate erred in law and in fact by finding the Appellant liable despite uncontroverted evidence that:- the motor cycle was no longer in its possession or control;- the 3rd third party was the equitable and beneficial owner and was in full control at the time of the accident;-there was no employer-employee or principal-agent relationship between the defendant and the 3rd third party. (5) That the magistrate erred in law by applying the doctrine of res ipsa loquitur inappropriately and in the absence of any direct or circumstantial evidence showing the defendant’s negligence or vicarious liability. (6) The learned magistrate misdirected herself on the burden of proof, by accepting mere assertions unsupported by primary evidence, contrary to wellestablished legal principles that pleadings are not evidence and require proof. (7) That the magistrate erred in fact and law by issuing an award for general and special damages against the defendant despite making a firm finding that the 3rd third party was solely liable – thereby issuing a contradictory decree incapable of enforcement.” 3. The brief facts of this case were that on 25th October 2021 the 1st respondent was a pillion passenger on motor cycle registration no. KMFQ 652 Y which was involved in an accident as a result of which he sustained serious injuries – fracture of the 4th and 5th ribs on the left side. The 1st respondent blamed the rider of the motor cycle for what he described as driving at a very high speed. The appellant herein was sued as the registered owner of the motor cycle. During the course of the proceedings the appellant took out third party proceedings against the 2nd and 3rd respondents who in turn took out third party proceedings against the 4th respondent for reason that they had merely financed him to purchase the motor cycle. The 4th respondent did not enter appearance in the suit or file a defence. In her judgment the learned magistrate found that the 2nd and 3rd parties (the 2nd and 3rd respondents herein) were merely financiers whose names appeared on the motor cycle’s logbook in order to protest their interest and hence they could not be blamed for the accident which occurred while the motor cycle was in the possession and control of the 4th respondent. The motor cycle was still registered in the appellant’s name as at 3rd February 2022 hence the finding of liability against it. 4. Having carefully considered the evidence in the court below, I am satisfied that the accident did in fact occur and that the rider of the motor cycle in which the 1st respondent was but a fare paying passenger was negligent and hence liable to the 1st respondent in damages. Although the appellant (the defendant in the court below) took out third party proceedings against parties who were absolved from blame, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7628/eng@2026-05-28 2

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the motor cycle was still registered in its name and so the learned magistrate was correct in finding that it could not be found directly liable as it did not have possession and control of the motor cycle. The person who was in possession and control of the motor cycle at the time of the accident was the 4th respondent (3rd third party) but because the 1st respondent’s claim was against the appellant and indeed it was still the registered owner, liability was determined between it and the 1st respondent (plaintiff in the case). The appellant could nevertheless claim indemnity from the third party who was found at fault. That is the essence of third party proceedings as provided in Order 1 Rule 21(1) of the Civil Procedure Rules) and the learned magistrate cannot be faulted for arriving at the decision she did. The Rule states: “ 21. Judgment after trial against third party in default [Order 1, rule 21] (1) Where a third party makes default in entering an appearance in the suit, and the suit is tried and results in favour of the plaintiff, the court may either at or after the trial enter such judgment as the nature of the suit may require for the defendant giving notice against the third party: Provided that execution thereof shall not be issued without leave of the court, until after satisfaction by such defendant of the decree against him.” 5. The upshot is that this appeal is not merited and it is dismissed, the judgment and decree of the court below is upheld. 6. Costs follow the event and hence the appellant shall bear the costs of the 1st, 2nd and 3rd respondents. Orders accordingly. JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS ON THIS 28TH DAY OF MAY, 2026. E. N. MAINA JUDGE In the presence of: Ms Wambui for Odanga for Appellant Ms Nyanjiru for 2nd Respondent Mary - Court Assistant/Interpreter https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7628/eng@2026-05-28 3

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