Ouko & 2 others v Sanghani & 2 others (Civil Case E151 of 2025) [2025] KEMC 421 (KLR)

Defendant’s actions. They added that their interest in the subject motor vehicle was financial, and nothing more. 5. The 3rd Defendant/Applicant placed before this court Hire Purchase Agreements Nos. 002HPAR 16190000314 dated 06th July 2016 and 002HPAR 19290001 dated 14th October 2019 in support of their case. 6. The Plaintifi/Respondent opposed the instant Application vide his Replying Afidavit sworn on 16th October 2025. 7. The Plaintifi/Respondent conceded that the 3rd Defendant/Applicant was the subject motor vehicle’s financier. However, he added that the 3rd Defendant/Applicant was a proper party to this suit for having financed the acquisition of the subject motor vehicle and being the said motor vehicle’s joint registered owner. 8. He urged this court to dismiss the instant Application with costs for a determination of ownership and control of the subject motor vehicle as well as liability with the participation of all the parties herein. 9. On 23rd October 2025, the 3rd Defendant/Applicant and the Plaintifi/Respondent elected not to file written submissions. They elected to rely on their respective pleadings. Analysis & Determination 10. The pleadings as well as the annextures placed on record by the 3rd Defendant/Applicant and the Plaintifi/Respondent have been duly considered by this court. 11. This court takes the view that the issues that commend to this court for determination are: a. Whether the instant Application is merited b. Who should bear the costs of the instant Application Whether the instant Application is merited 12. It is common ground that the 3rd Defendant/Applicant was a financier towards the 1st and 2nd Defendant’s acquisition of the subject motor vehicle. It is also not in contest that the subject motor vehicle’s copy of records shows that the 3rd Defendant/Applicant was the subject motor vehicle’s joint registered owner at the time of the accident herein. 13. Whereas, the 3rd Defendant/Applicant took the position that they were improperly joined to this matter since they were only financiers in the acquisition of the subject motor vehicle, the Plaintifi/ Respondent took the divergent position that they were proper parties for the just determination of the issues in this case. 14. The Plaintifi/Respondent was also of the view that the issues raised by the 3rd Defendant/Applicant could not be determined at this interlocutory stage. 15. On the issue of whether the question of misjoinder should only be determined after hearing all the parties on merit, this court places reliance on the provisions of Order 1 Rule 10 (2) of the Civil Procedure Rules to answer this question. 16. Order 1 Rule 10 (2) of the Civil Procedure Rules is in the following terms:“ The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/421/eng@2025-10-30 2

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name of any party improperly joined, whether as plaintifi or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintifi or defendant, or whose presence before the court may be necessary in order to enable the court efiectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”(Emphasis added) 17. Order 1 Rule 14 of the Civil Procedure Rules further provides for the time and manner in which the application envisaged under Order 1 rule 10 (2) of the Civil Procedure Rules is to be brought. Order 1 Rule 14 of the Civil Procedure Rules states “ Any application to add or strike out or substitute a plaintifi or defendant may be made to the court at any time before trial by chamber summons or at the trial of the suit in a summary manner.”(Emphasis added) 18. The operative words in the provisions of law cited above are: ‘at any stage of the proceedings’ and ‘at any time before trial…or at the trial of the suit..’ 19. The foregoing shows that an Application for misjoinder of a party can be made at any stage of proceedings. 20. This makes a lot of sense since it will be a waste of judicial resources and a party’s resources to drag a party through the economically and emotional draining journey through the justice system for several months or years only to later make a finding that such a party was improperly joined to the suit. 21. In the event this court heeds to the Plaintifi/Respondent’s invitation to determine the question of the 3rd Defendant/Applicant’s misjoinder after hearing the parties herein on merit, that will amount to dragging the 3rd Defendant/Applicant in a costly venture of defending a non-existent civil claim against them if it ultimately turns out that the Applicant was improperly sued. 22. A party improperly joined to a suit needs to be unshackled from the chains of a suit they ought not to be party to with maximum hurry and minimum delay. This will also protect the Plaintifi/Respondent from being condemned to pay costs to a party that they wrongly sued. Therefore, it follows that the question of misjoinder of a party ought to be determined at the earliest opportune time hence the 3rd Defendant/Applicant’s prayer to be struck out from this suit at this stage is properly before this court. 23. The question of a financier’s liability in road trafic accidents has been a subject of various judicial pronouncements in this jurisdiction. 24. In Ali Lali Khalifa And 8 Others Vs Pollman’s Tours And Safaris Ltd, & Diamond Trust Bank (K) Limited Vrs Salim Khalid Said[2003] eKLR, the court considered the nature and efiect of a financier and hirer status under a Hire Purchase Agreement and held as follows: “ The legal position is this: if it can be demonstrated that a registered owner of a motor vehicle hired out to a third party or the said vehicle was used in the circumstances which did not allow for the doctrine of vicarious liability on the part of the registered owner, to apply, then the latter is not liable.In Ormrod v. Crosville Motor Services Ltd. (1954) 2 All ER 752, at page 755 Lord Denning said:“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 is being used wholly or partly by the owner’s business or for the owner’s purpose, the owner is liable for any 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.”In the circumstances of the present case the https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/421/eng@2025-10-30 3

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following facts have been proved to exist (a) The second defendant was a mere financier of the first defendant for the purposes of the acquisition of the motor vehicle Reg. No. KAE 520H by the first defendant, and the second defendant’s interest in said vehicle was merely recorded in the Registration Book or in the records held by the Registrar of Motor Vehicles for the purposes of securing its interests under the Hire Purchase Agreement. That interest is in the balance of the loan or advances to the first defendant…. interest is the balance of the loan or advances to the first Defendant. (b) At the time of the accident the said vehicle KAE 520H had been sold to the third Defendant by the first Defendant and the third defendant was thus operating matatu business (c) The second defendant had neither interest in the first defendant’s business nor in the third defendant’s matatu business. (d) The accident the subject matter of this suit, arose at the time when the said vehicle was being driven wholly for the purpose of the business of the Third defendant.” Emphasis added. 25. Similarly, in Justus Kavisi Kilonzo V Coast Broadway Company Limited & another [2008] eKLR , it was held that; “ Despite the registration of the 2nd defendant as co-owner of the said motor vehicle, as a financier of the 1st defendant, the 2nd defendant is not a necessary party to these proceedings. To use the language of Etyang J (now retired), in Mombasa HCC Number 106 of 2002: Ali Lali Khalifa & Others –vs- Pollman’s Tours & Safaris & 2 Others (UR), the 2nd defendant has demonstrated that it hired out the said motor vehicle to the 1st defendant and the said vehicle was used by the 1st defendant in circumstances which do not allow for the doctrine of vicarious liability to apply to the 2nd defendant.” 26. The foregoing shows that a hirer of a motor vehicle under a Higher Purchase Agreement cannot be held to be vicariously liable for the actions of a person who was driving a motor vehicle, which is the subject of a hire purchase agreement, for their own benefit. 27. There is no evidence on record that at the time of the alleged accident the subject motor vehicle was being driven for the 3rd Defendant/Applicant’s benefit. Further, there is nothing on record to suggest that the subject motor vehicle was under the 3rd Defendant/Applicant’s control at the time of the alleged accident. 28. The law in this jurisdiction is that a hirer of a motor vehicle is a nominal owner having no custody or control of the vehicle, and as such the hirer does not owe a duty of care to a claimant as would have given rise to (vicarious) liability against the hirer. 29. The purpose of hirer being registered as a joint owner of a motor vehicle under a Hire Purchase Agreement remains to be the protection of the hirer’s financial interest in the subject motor vehicle. 30. The 3rd Defendant/Applicant having proved on a balance of probabilities that they were only financiers/hires of the subject motor vehicle, and the Plaintifi/Applicant having conceded as much, it follows that the 3rd Defendant/Applicant was improperly joined to this suit. Who should bear the costs of this Application 31. The general rule under section 27 of the Civil Procedure Act is that costs follow the event. Taking the totality of the circumstances of this case into consideration, this court is of the considered view that this is a proper case of departing from the general rule on costs, given that the Plaintifi/Respondent sued the 3rd Defendant/Applicant based on the entries in the subject motor vehicle’s copy of records at the registrar of motor vehicle’s register. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/421/eng@2025-10-30 4

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Determination 34. Accordingly, for the reasons set out above, the 3rd Defendant/Applicant’s Application dated 06th October 2025 is allowed in the following terms: a. The suit against the 3rd Defendant/Applicant is dismissed b. Each party to bear their costs It is so ordered. READ, SIGNED, AND DELIVERED VIRTUALLY AT BUNGOMA THIS 30TH DAY OF OCTOBER 2025 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Mulyingi for the 3rd Defendant/Applicant Ms. Lubanga for the Plaintifi/Respondent Ms. Wambani for the 1st Defendant Mr. Anaya for the 2nd Defendant C/A: Mr. Rioba https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/421/eng@2025-10-30 5

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