Shikulu v Mwangi & 3 others

5. The 3rd Defendant entered appearance and filed a Statement of Defence where they put the Plaintiff to strict proof of all the averments in their Plaint. They denied owning the matatu at the time of the accident, given that they had sold the said matatu to the third party on 20 th June 2019; hence, they could not be held liable for the accident herein. They also pleaded that if the accident herein occurred, then the same was caused by the car driver’s negligent acts and omissions enumerated in their Statement of Defence. 6. The 3rd Defendant also joined the third party to this suit seeking indemnity from the third party from liability that would attach against them in this case. However, the third party neither entered appearance nor filed their Statement of Defence despite having been duly served with the third party notice and the 3rd Defendant’s Statement of Defence. 7. In the circumstances, the 3rd Defendant pleaded that the Plaintiff’s suit against them ought to be dismissed with costs. 8. It is against this backdrop that this matter was set down for hearing for the Plaintiff and the 3rd Defendant to prove the averments in their respective pleadings on a balance of probabilities. 9. The summary of the evidence adduced by the Plaintiff and the third party is before this court by the parties herein is set out below. EVIDENCE Plaintiffs’ Case 10. PW1 No. 76XXX PC Isaac Kimani Njuguna of Bungoma Police Station produced the accident’s police abstract dated 12th February 2025 showing that the accident herein was reported at Bungoma Police Station vide OB. No. 47/02/02/2025. He blamed the matatu driver for the accident since the matatu hit the car off-road while swerving to avoid hitting another motor vehicle. He further stated that the Plaintiff and his passenger, Justus Mulunda, were injured as a result of the accident. 11. He conceded in cross-examination that he could not tell the circumstances under which the accident occurred given that he was not the accident’s investigating officer. 12. PW2 Evans Obare Shikulu adopted his witness statement dated 07th May 2025 as his evidence in chief. He testified that on the date of the accident, he had parked the car off the road along Bungoma – Mumias road on the left side while facing the Bungoma general direction when the matatu, which was headed to Mumias direction from Bungoma general

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direction, encroached onto his lane and hit his car while avoiding a head-on collision with an oncoming motor vehicle. 13. He added that the impact caused him to sustain severe injuries and caused extensive damage to the car, which was written off. 14. PW3 Dr. Joseph Sokobe produced the Plaintiff’s medical report dated 05th March 2025 showing that the accident caused the Plaintiff to sustain blunt injuries to the chest, shoulders, back and upper limbs. He also produced a receipt for Kshs. 6,000/= for preparing the Plaintiff’s medical report. 15. PW4 Elias Adoka, a Clinical Officer from Bungoma County Referral Hospital (BCRH) produced the Plaintiff’s P3 form dated 11 th February 2025 and treatment notes which he had prepared after the Plaintiff’s treatment at BCRH following the accident herein. He assessed the injuries sustained by the Plaintiff as harm. 16. He added in cross-examination that the Plaintiff must have recovered by now from the soft tissue injuries he sustained from the accident. 3rd Defendant’s Case 17. DW1 Patrick Mungai Mburu testified that he is the 3rd Defendant’s director. He produced an Authority to Act dated 15th August 2025 in support of his position that he was authorized by the 3rd Defendant to plead and testify on their behalf in this matter. 18. He also produced a motor vehicle sale agreement dated 20 th June 2019 showing that the 3rd Defendant had already sold the matatu to the third party at the time the accident herein occurred. 19. He added that clause 5 (a) and (b) of the motor vehicle sale agreement exempted him from liability in this matter. He reiterated that the third party and his insurer were the ones liable for the accident. 20. In cross-examination, he stated that he was the 3 rd Defendant’s sole director. He conceded that the third party was still the matatu’s registered owner at the time of the accident, and that he had not filed the 3rd Defendant’s resolution permitting him to testify on their behalf. 21. He clarified in re-examination that he remained the matatu’s registered owner after execution of the motor vehicle sale agreement since the third party had not fully paid the matatu’s purchase price. ANALYSIS AND DETERMINATION

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22. This court has given due regard to the pleadings, the evidence on record, as well as the Plaintiff’s written submissions. It is worth noting that the 3rd Defendant did not file their written submissions. 23. The Plaintiff and the 3rd Defendant agree that the accident herein involved the car and the matatu, and that the Plaintiff was injured as a result of the said accident. Their point of departure is on whether DW1 had the authority to plead and testify on behalf of the 3 rd Defendant, whether the 3rd Defendant is a proper party to this suit, and who is to blame for the accident. 24. The foregoing inclines this court to find that the issues for determination are: a) Whether DW1 had authority to plead and testify on behalf of the 3rd Defendant b) Whether the 3rd Defendant is a proper party to this suit c) Liability d) Quantum Whether DW1 had authority to plead and testify on behalf of the 3rd Defendant 25. The Plaintiff submitted that DW1 could not plead and testify on behalf of the 3rd Defendant in the absence of a CR 12 form identifying him as the 3rd Defendant’s director and the 3rd Defendant’s board resolution permitting him to testify and plead on behalf of the 3rd Defendant. 26. It is given that section 34 (1) of the Companies Act expressly states that a company can only be bound by its director and that only a director of a particular company is permitted to plead on behalf of a company in a case. This provision of the law must have informed the Plaintiff’s submission that DW1 needed to file the 3rd Defendant’s board resolution and a CR 12 form to prove that he had the legal capacity or standing to plead and testify on behalf of the 3rd Defendant. 27. A perusal of the record shows that the 3 rd Defendant filed an Authority to Act dated 15th August 2025 permitting DW1 to plead and testify on behalf of the 3rd Defendant. DW1’s witness statement on record, which he adopted as his evidence in chief under oath before this court, also shows that DW1 was the 3rd Defendant’s director with authority to plead and testify on behalf of the 3rd Defendant.

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28. The question raised by the Plaintiff on DW1’s capacity or legal standing to plead and testify on behalf of the 3 rd Defendant without the 3rd Defendant’s board resolution to that effect has been the subject of very many authorities set out below. 29. In Spire Bank Limited v Land Registrar & 2 others [2019] KECA 530 (KLR), the Court of Appeal held as follows: “In this regard the learned judge found that there was no board resolution sanctioning the commencement of this action by the company, and therefore it was not properly before the court because “…The Ex-parte Applicant has not exhibited in the verifying affidavit a copy of the resolution of the company authorizing the institution of these proceedings. There is also no evidence before this court that the said Josephine Musembi has been authorized by a resolution under seal.” Order 4 rule 1(4) provides as follows: “1 (4) Where the plaintiff is a corporation, the verifying affidavit shall be sworn by an officer of the company duly authorized under the seal of the company to do so.” It is clear from the provision, which is stated in mandatory terms, that for a company to file suit, there must be a verifying affidavit sworn by an officer of the company stipulating that he or she is duly authorized under the company’s seal to verify the affidavit in respect of the suit. Such person would of necessity require to be authorized by a resolution of the Board of Directors or the members under seal of the company, in order for the suit to be instituted.

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Clarifying the position on the question of authorization in the case of Makupa Transit Shade Limited & Another vs Kenya Ports Authority & Another [2015] eKLR this Court stated thus; “In our view, the Authority, as with other corporate bodies, has its affidavits deponed on its behalf by persons with knowledge of the issues at hand who have been so authorized by it. It was therefore sufficient for the deponents to state that “they were duly authorized.” It was then up to the appellants to demonstrate by evidence that they were not so authorized.” So that it was sufficient for the authorized person to depone that he or she was duly authorized, but in the event of a complaint that such person was unauthorized, it was up to the disputing party to demonstrate with evidence that the deponent did not have the requisite authority, the onus being on the party making the allegation to prove it. A bare statement that the plaintiff or applicant was not authorized would not be sufficient.”(Emphasis added) 30. In Raymark Limited v John Lokorio [2021] KEELC 248 (KLR), the court held: “Having found that the company ( plaintiff) had indeed authorized the filing of the suit, board resolution that was the mere fact there was no filed together with the plaint sanctioning the filing of the suit cannot render the suit fatally defective, See Leo Investments Ltd -vs- Trident Insurance Co. Ltd (supra) where Odunga, J held that failure to file a resolution authorizing filing of the suit does not invalidate the suit as the defect can be rectified by filing the resolution before the suit was heard. To hold otherwise would be to elevate procedural

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technicalities to a point where they would be an impediment to the administration of justice. Article 159 (2) (d) of the constitution which section 19(1) of the Environment and Land Court Act, 2011 echos, enjoins the court to administer justice expeditiously and without undue regard to technicalities of procedure.” 31. Whereas the authorities above determined the question of authority to file suits on behalf of companies, this court is of the considered view that the said authorities apply mutatis mutandis to how an authority to defend a suit or plead or testify on behalf of a company should be proved. 32. This court’s reading of the authorities above is that the correct legal position on this issue is that where a person has stated in their pleadings or statement that they have been authorized to plead or testify by a company, the evidential burden shifts to the party alleging that they do not have the authority to do so to lead evidence to prove the alleged lack of authority (see Dardanelli & 6 others v Tilito & 3 others (Land Case E041 of 2024) [2025] KEELC 392 (KLR)). 33. The Plaintiff did not lead any evidence to controvert the contents of DW1’s witness statement and the said Authority to Act on DW1’s legal capacity or standing as the 3rd Defendant’s director authorized to plead and testify on behalf of the 3rd Defendant. 34. Given the uncontroverted contents of the Authority to Act on record and DW1’s evidence on record under oath that the 3rd Defendant authorized him to plead and testify on their behalf in this case, this court holds and finds that this suit is properly before this court and that PW1 and PW2 had the authority to testify before this court on behalf of the Plaintiff. Whether the 3rd Defendant is a proper party to this suit 35. The Plaintiff submitted that the 3rd Defendant’s position that they were wrongly joined to this suit was untenable since the matatu’s copy of records herein shows that they were the

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matatu’s registered owner when the accident occurred. The Plaintiff took the position that the 3rd Defendant must be held liable for the accident given that they were the matatu’s registered owner when the accident occurred. 36. The 3rd Defendant, on their part, maintained that they had already sold the matatu to the third party when the accident occurred and that clause 5 (a) and (b) of the sale of motor vehicle agreement between them and the third party dated 20th June 2019 exempted them from liability in this case. Simply put, the 3rd Defendant denied ownership and control of the matatu at the time the accident occurred despite being the matatu’s registered owner then. 37. Section 8 of the Traffic Act gives room for a party disputing ownership of a motor vehicle to lead any other evidence to dispute the contents of the register of motor vehicles. This is in line with the holding in Samuel Mukunya Kamunge v John Mwnagi Kamuru, Nyeri H.C. Civil Appeal No. 34 of 2002, where Okwengu J. (as she then was) held that: “It is true that a certificate of search from the Registrar of Motor vehicles would have shown who was the registered owner of motor vehicle according to the records. That however, is not conclusive proof of actual ownership of the motor vehicle as section 8 of the Traffic Act provides that the contrary can be proved. This is the recognition of the fact that often times motor vehicles change hands but the records are not amended. I find that the trial magistrate was wrong in holding that only a certificate of search from the Registrar of Motor Vehicles could prove ownership of the motor vehicle. I find (that) a police abstract report having been produced showing the respondent as the owner of the motor vehicle No. KAH XXXX, and evidence having been adduced that letters of demand sent to the respondent elicited no response from him denying ownership of the motor vehicle and the respondent having offered no evidence to contradict the information on the police abstract report, the appellant had established on a balance of probability that motor vehicle No. KAH XXXX was owned by the respondent.” 38. Similarly, Ojwang J. (as he then was) in Nancy Ayemba Ngaira v Abdi Ali (2010) eKLR added his voice to this issue by holding that: “There is no doubt that the registration certificate obtained from the registrar of motor vehicles will show the name of the registered owner of a motor vehicle. But

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the indication thus shown on the certificate is not final proof that the sole owner is the person whose name is shown. Section 8 of the Traffic Act is fully cognizant of the fact that a different person or different other persons, may be the de facto owners of the motor vehicle – and so the Act has an opening for any evidence in proof of such differing ownership to be given. And in judicial practice, concepts have arisen to describe such alternative forms of ownership: actual ownership; beneficial ownership, possessory ownership. A person who enjoys any of such other categories of ownership, may for practical purposes, be much more relevant than the person whose name appears in the certificate of registration; and in the instant case at the trial level, it had been pleaded that there was such alternative kind of ownership. Indeed, the evidence adduced in the form of the police Abstract, showed on a balance of probabilities, the 1st defendant was one of the owners of the matatu in question.” 39. This court has had the benefit of going through the motor vehicle sale agreement on record. That agreement corroborates the 3rd Defendant’s position regarding their liability in this matter and the matatu’s possessory ownership at the time the accident occurred. That agreement proves on a balance of probabilities that the 3rd Defendant’s name was retained in the register of motor vehicles with respect to the matatu to protect the 3 rd Defendant’s financial interest as the matatu hirer/financier. 40. The police abstract produced by the Plaintiff also shows that the 1 st Defendant was the matatu’s insured/beneficial owner when the accident occurred. This reinforces the 3 rd Defendant’s position that the matatu had changed ownership at the time the accident occurred. This also shows that the matatu was neither under the 3 rd Defendant’s control nor was it being used for the 3rd Defendant’s benefit when the accident occurred. 41. The law in this jurisdiction is that a motor vehicle hirer/financier, though registered as a motor vehicle’s owner, cannot be held vicariously liable for the actions of the motor vehicle driver who was not their servant or agent, and who was not driving the motor vehicle for the hirer’s/financier’s benefit when the accident occurred. This legal position taken by this court on this issue finds support in Ali Lali Khalifa and 8 Others V Pollman’s Tours and Safaris Ltd, & Diamond Trust Bank (K) Limited V Salim Khalid Said[2003] eKLR,

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where the court, in excluding a motor vehicle acquisition financier from liability arising from a road traffic accident, stated thus: “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 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.

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42. 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.” 43. The foregoing shows that this court has said enough to show that the 3 rd Defendant, being the matatu’s hirer/financier, cannot be held to be vicariously liable for the matatu driver’s negligent acts or omissions. 44. The inevitable conclusion to be drawn from the analysis above is that the 3 rd Defendant was improperly joined to this suit; thus, the suit against them must suffer the fate of dismissal. 45. This court’s holding above that the 3rd Defendant’s suit is up for dismissal raises questions on whether the third party should remain a party to this suit for determination of liability and quantum. 46. The issue of third party proceedings is determined between the defendant and the third party as was enunciated in Kenya Commercial Bank vs Suntra Investment Bank Ltd (2015) eKLR where the court held that:“In law, a third party is enjoined in a suit at the instance of the defendant and through the set procedure under Order 1 Rule 15-22 of the Civil Procedure Rules. And, liability between the defendant and the third party is determined between the defendant and the third party, but of course after the court is satisfied that there is a proper question to be tried as to liability of the third party and the defendant, and has given directions under Order 1 Rule 22 of the Civil Procedure Rules. The way I understand the law on third parties, such issues of third parties are issues and triable only between the third party and the defendant and cannot be a bona fide issue triable between the defendant and the plaintiff. On the basis of those legal reasons, even if the third party had been joined, which he has not, it is not a

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triable issue at all for purposes of liability between the plaintiff and the defendant.” 47. Guided by the authority above, it follows that this court, having dismissed the suit against the 3rd Defendant, the question of indemnity between the 3 rd Defendant and the third party is moot. Therefore, the 3rd Defendant’s indemnity claim against the third party is dismissed. Liability 48. The record shows that an interlocutory judgment was entered against the 1 st and 2nd Defendants. The Court of Appeal in Paul Muiyoro t/a Spotted Zebra v Bulent Gulbahar Remax Realtors [2016] KECA 95 (KLR) stated as follows on the consequence of entering an interlocutory judgment against a Defendant: “It is now settled that once interlocutory judgment has been entered the question of liability becomes a foregone conclusion. In Felix Mathenge -v- Kenya Power Lighting Company Limited [Civil Appeal No. 215 of 2002] UR, the Court held: "The role of the court after entering interlocutory judgment was only to assess damages since interlocutory judgment having been regularly obtained there can never be any doubt that judgment was final with regard to liability and was unassailable. It was only interlocutory with regard to the quantum of damages". 49. It is abundantly clear from the authority above that the entry of an interlocutory judgment against the 1st and the 2nd Defendant settled the issue of liability between the Plaintiff and the 1st Defendant as well as the 2nd Defendant. In the circumstances, this court finds the 1 st and 2nd Defendants 100% liable for causing the accident. 50. The findings herein on whether DW1 had authority to plead and testify on behalf of the 3 rd Defendant, whether the 3rd Defendant is a proper party to this suit, the 3 rd Defendant’s claim for indemnity against the third party, and liability apply to Bungoma CMC CC No. E220 and No. E223 all of 2025. Quantum (a) General Damages for Pain and Suffering 51. The Plaintiff pleaded in paragraph 8 of his Plaint that the accident caused her to sustain blunt injuries to the chest, shoulders, back and upper limbs, which were assessed as harm.

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52. The uncontroverted Plaintiff’s medical evidence on record proved on a balance of probabilities that the Plaintiff sustained blunt injuries to the chest, shoulders, back and upper limbs as a result of the accident. 53. The law in this jurisdiction is that comparable injuries should, as far as possible, be compensated by comparable awards. This legal principle was reiterated by the Court of Appeal in Stanley Maore vs Geoffrey Mwenda (2004) eKLR, as follows: “...we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards, keeping in mind the correct level of awards in similar cases.” 54. This court has given due regard to the written submissions on record on quantum. 55. The injuries sustained by the Plaintiff herein are almost similar to the injuries sustained by the Plaintiff in Oloo v Arika & another (Civil Appeal E080 of 2024) [2026] KEHC 2889 (KLR) where the court awarded general damages of Kshs. 150,000/= for a head injury, left and right leg injury, superficial bruises to both knees, face, and scalp, chest injury, soft tissue injuries on the fingers, bruises, and lacerations on various parts of the body. 56. In Kiptoon v Mattan Contractors Ltd & another (Civil Appeal E001 of 2025) [2026] KEHC 4208 (KLR) where the High Court upheld an award of Kshs. 160,000/= for chest injury with a small hemothorax; cut wound on the anterior abdominal wall; and blunt injury to the back. 57. Lastly, in Okumu v Oloo (Civil Appeal 835 of 2024) [2026] KEHC 8170 (KLR) (Civ) the court upheld an award of Kshs. 200,000/= for chest tenderness, bruises on the face, bruises on the hands, and a septic wound on the foot. 58. The authorities above show that awards of between Kshs. 150,000/= - Kshs. 200,000/= are usually made for moderate multiple soft tissue injuries. It is for this reason that this court awards the Plaintiff Kshs. 200,000/= under this head. Special Damages 59. The Plaintiff pleaded in paragraph 8 of his Plaint for Special Damages of Kshs. 18,750/=. However, the Plaintiff only produced a receipt for Kshs. 6,000/= for the medical report, and a receipt for Kshs. 550/= for motor vehicle search. 60. In view of the above, this court finds and holds that the Plaintiff pleaded and proved special damages of Kshs. 6,500/=. DETERMINATION 61. The upshot of the foregoing is that judgment is entered against the 1st and 2nd Defendants jointly and severally in the following terms: a) Liability………………………………………100% b) General Damages…………………...………Kshs. 200,000/= c) Special Damages……………………...…….Kshs. 6,500/=

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Total Award……………………..Kshs. 206,500/= 62. General Damages will accrue interest at court rate from the date of this judgment till payment in full, while the Special Damages will accrue interest at court rate from the date of filing this suit till payment in full. 63. The suit against the 3rd Defendant is dismissed with costs. The 3rd Defendant’s claim for indemnity against the third party is dismissed. 64. The Plaintiff will have the costs of this suit. 65. Judgment accordingly. Read, signed, and delivered in open Court at Bungoma this 01st day of September 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Oriko for the Plaintiff C/A: Mr. Rioba

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