Mogo Auto Ltd v Mutinda & 3 others [2026] KEHC 15873 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL APPEAL NO. E251 OF 2024

MOGO AUTO LIMITED………………………………….......……. APPELLANT VERSUS

SAMSON MWANZIA MUTINDA…………………...........…..1ST RESPONDENT

PAUL KIOKO MUTISYA……………………………........……2ND RESPONDENT

PLATINUM MILES AUTO SPARES LIMITED…………......…3RD RESPONDENT

CAR & GENERAL TRADING LIMITED……....………….......4TH RESPONDENT

JUDGEMENT

1. The 1st Respondent instituted a claim before the Small Claims Court at Machakos in SCCC/E469 OF 2024 seeking general and special damages for injuries sustained in a road traffic accident that occurred on 12th October 2023 along Machakos-Wote Road at Susan Area involving motorcycle registration No. KMCX 757B and tuk tuk registration No. KTWD 415A. The evidence adduced before the trial court established that the tuk tuk KTWD 415A was negligently driven and collided with the 1st Respondent's motorcycle from behind thereby causing the accident and the resultant injuries suffered by the 1st Respondent. After hearing all the parties and evaluating the evidence placed before it, the learned trial magistrate delivered judgment on 9th September 2024, finding that the 1st Respondent had proved his case on a balance of probability and I find the Appellant and the 2nd Respondent 100% liable for the accident. The 1st Respondent was awarded Kshs.170,000/= in general damages, Kshs.8,850/= in general damages plus costs and interest.

2. Being dissatisfied with the said judgment, the Appellant lodged this appeal vide a Memorandum of Appeal dated 23rd September 2024 on five grounds which can be summarised in a single ground that the Appellant was merely a financier of the tuk tuk herein and therefore not liable for the accident.

3. The appeal was canvassed by way of written submissions and the Appellant and the 1st Respondent complied by filing their respective submissions.

4. The Appellant submits that it only financed the purchase of the tuk tuk registration number KTWD 415A which was being used and or operated by the 2nd Respondent at the time of the accident thus the Appellant ought to have been absolved the from liability.

5. The 1st Respondent respectfully submits that the appeal is devoid of merit, is an attempt to evade lawful responsibility hence it should be dismissed with costs.

Analysis and Determination

6. This being an appeal from the Small Claims Court, the jurisdiction of the Court is circumscribed in Section 38 of the Small Claims Court Act. Section 38 of the Small Claims Court Act provides as follows:

1. A person aggrieved by the decision or an order of the Court may appeal against that decision or an order to the High Court on matters of law.

2. An appeal from any decision or order referred to in sub section (1) shall be final.

7. The above provision means that this Court can only intervene if the evidence on record does not reasonably support the conclusions made by the trial court. More specifically, an appeal before this Court is essentially limited to points of law. Such points of law would include misapplication of statutory provisions; misdirection on evidence and errors in legal evaluation of facts as noted hereinbefore.

8. This court has given due regard to the pleadings, the evidence on record before the trial court, the grounds of appeal and the written submissions, as well as the authorities cited by the parties’ respective counsel herein.

9. In my considered view, the two major issues raised by the Appellant in this appeal touch on ownership of the subject tuk tuk that was involved in the alleged accident and liability which both raise points of law hence the appeal is competent and properly before this court.

10. The evidence on record leaves no doubt in this court’s mind that the accident herein occurred and the same was reported at Machakos Police Station and Police Abstract dated 16/10/2023 was issued to the victim/1st Respondent.

11. It is against this backdrop that this court finds and holds that the issues which commend to this court for determination are ownership of the Tuk Tuk registration No. KTWD 415A and liability.

Ownership of the Tuk Tuk registration No. KTWD 415A

12. Ownership of a motor vehicle in the Republic of Kenya can be considered in three different ways; (i) registered owner from an entry in the copy of motor vehicle records/register held by NTSA ;(ii) beneficial owner who is currently benefiting from the motor vehicle and (iii) insured owner in whose name a valid insurance policy is presently issued.

13. The law in this jurisdiction is that the entry in the register of motor vehicles on the ownership of a motor vehicle is prima facie evidence of ownership of a motor vehicle.

14. In the circumstances of this matter, the motor vehicle search shows that the 4th Respondent (then 1st Respondent -Car & General Trading Limited) was the registered owner of the motor vehicle as at 12/10/2023 when the alleged accident occurred. In the case of Benard Muia Kilovoo vs. Kenya Fresh Produce Exporters (2020) eKLR, the Court of Appeal held as follows: -

i. That the presumption that the person registered as owner of the motor vehicle in the logbook is the actual owner is rebuttable.

ii. Where there exists other compelling evidence to proof otherwise then the court can make a finding of ownership that is different from that contained in the logbook.

iii. Each case must however be considered in its own peculiar facts."

15. The 3rd Respondent’s (PLATINUM MILES AUTO SPARES LIMITED -then 2nd Respondent) witness testified and produced documents to show that they had already sold the motor vehicle to the then 2nd Respondent.

16. This position was confirmed by the then 2nd Respondent. For this reason, the 14th Respondent (then 1st Respondent -Car & General Trading Limited) had adduced sufficient evidence that they were not the actual owners of the motor vehicle and the case against the it was dismissed. The 3rd Respondent’s (PLATINUM MILES AUTO SPARES LIMITED testified and also produced documents to show that they had sold the motor vehicle to the third parties. This evidence was confirmed by the 1st third party (the Appellant herein). The 2nd third party (PAUL KIKO MUTISYA-2nd respondent herein) did not defend the suit and therefore the 3rd Respondent’s (PLATINUM MILES AUTO SPARES LIMITED -then 2nd Respondent) evidence was also uncontroverted. The case against the 3rd Respondent herein was also dismissed. The Appellant (1st third party) testified that they were mere financiers of the purchase of the motor vehicle tuk tuk herein on behalf of the 2nd Respondent PAUL KIOKO MUTISYA- (2nd third party). They denied being either actual or beneficial owner of the motor vehicle as at the time of the accident.

17. The certificate of insurance shows that the same was issued in the joint names of the Appellant and 2nd Respondent herein, MOGO AUTO LIMITED and PAUL KIOKO MUTISYA (then 1st and 2nd third party).

The trial court therefore stated that the fact that the Appellant (1st third party) took out an insurance in its name to cover the motor vehicle, it means it continued to enjoy some benefit of the motor vehicle and had insurable interest in the motor vehicle. The reason why the trial court said so is because the purpose of insuring a motor vehicle is to ensure the insurance compensates third parties or even the insured in case of an accident. With the 1st third party being an insured here, in case the motor vehicle was to get damaged, they would definitely claim compensation as an insured. The trial court went on to state that the same case should apply when it comes to compensation to third parties. In the end of it all, the trial court found that there was sufficient evidence to confirm that the Appellant and 2nd Respondent (1st and 2nd third parties) were the beneficial owners of motor vehicle registration number KTWD 425A as at 12/10/2023.

18. Having carefully considered the evidence and the finding of the trial court on the issue of ownership of the tuk tuk registration No. KTWD 415A herein, the question I pose to ask is why would the Appellant agree to be jointly insured with PAUL KIOKO MUTISYA, the 2nd Respondent? The plausible answer would be the Appellant had some attachment to it in addition to an insurable interest. The Appellant did not prove whether the 2nd Respondent had cleared the asset finance loan they advanced to him to purchase the tuk tuk herein, the more probable reason that they remained attached to it and even insured it.

19. In the present case, the evidence before the trial court demonstrated that the Appellant had direct legal and insured interest in the motor vehicle tuk tuk herein, including that: -

• It was named in the insurance certificate;

• It was a party to the purchase arrangement with the 2nd Respondent;

• It was exercising control over the release of the vehicle;

• It was retaining and protecting a financial interest in the tuk tuk.

20. On the foregoing, the Appellant's attempt to hide behind the label of "financier" cannot therefore defeat the clear legal principles governing ownership of a motor vehicle as submitted hereinabove. Accordingly, this court finds that the trial court properly determined the issue of ownership of the tuk tuk registration No. KTWD 415A by holding that in case this motor vehicle was to get damaged, the Appellant would definitely claim compensation as a duly insured party. Similarly, I hold likewise and find that the fact that the asset financial transaction was not said to have been completed and the tuk tuk transferred solely to the 2nd Respondent, then the Appellant retained and reserved ownership of the same. I find that the Appellant and the 2nd Respondent (1st and 2nd third parties were the insured and beneficial owners respectively of motor vehicle registration number KTWD 415A as at 12/10/2023.

Liability

21. On liability, the trial court stated that the Claimant (1st Respondent) testified that he was riding a motor cycle when he was hit by the subject tuk tuk. His evidence was corroborated by the police abstract. This evidence was not controverted. The third parties (Appellant and 2nd Respondent herein) as well did not adduce any evidence to controvert the Claimant's evidence. Despite making averments and denial in the response, and since the accident is confirmed to have happened, the Respondents had a duty of availing their driver to explain how the claimant contributed to the accident as well, driven motor vehicles do not just get involved in accidents.

22. In the circumstances, the trial court found that the 1st Respondent (Claimant) had proved his case on a balance of probability and found the Appellant and 2nd Respondent (1st and 2nd third parties) 100% liable for the accident.

23. The Appellant submits that at paragraph 36 of the Record of Appeal, the 3rd Respondent’s Director stated that:

“In the case of tuk tuk registration number KTWD 415A, the 1st Third Party (Appellant herein) sent one of its customers, Paul Kioko Mutisya (2nd Respondent herein), our show room in Machakos on 6th September 2023 to pick a tuk tuk of his choice. Paul Kioko Mutisya, who is the 2nd Third Party, picked the tuk tuk registration number KTWD 415A. On the same day, one of the 1st Third Party representatives issued the 2nd Respondent with an authority letter to release tuk tuk registration number KTWD 415A to the 2nd Third Party”

24. That this evidence absolved the 3rd Respondent and the 4th Respondent from liability but the evidence presented by the Appellant as a financier could not absolve the Appellant from liability according to the trial court because of the Insurance Certificate. The Appellant contends that it’s evidence that it only financed the purchase of the vehicle ought to have absolved the Appellant from liability.

25. The proceedings of 22/8/2024 at page 16 of the record of appeal show that on being cross-examined by Mr. Muriuki, the 1st Respondent (Claimant) stated that he did not know the driver of the tuk tuk. The Claimant’s witness 2, PC Gideon Kipruto from Machakos police station stated that the tuk tuk’s driver hit the motor cycle and disappeared. It was hit and run.

26. From the foregoing evidence there is no doubt that the driver of the tuk tuk disappeared after the accident and no details of him were availed. The tuk tuk is said to have been in the possession of the 2nd Respondent Paul Kioko Mutisya who failed to enter appearance in the primary suit and file a Defence. In the circumstances, no evidence was adduced to prove that the tuk tuk driver was an employee, servant, agent and or driver authorized by the Appellant to drive the subject tuk tuk at the time of the alleged accident. The Appellant’s only interest was in the security finance to secure the repayment from the 2nd Respondent thus it was not in control of the motor vehicle for that reason. Therefore. this court firmly finds that the doctrine of vicarious liability did not apply to the Appellant herein and as such liability could not attach to the Appellant. See the holding in Anyanzwa & 2 Others –Vs- Luigi De Casper and Anor (1981) eKLR, where the court held that the doctrine of vicarious liability depends not on the legal title ownership of the motor vehicle, but on the declaration of the task or duty.

27. Accordingly, this court finds that, notwithstanding that the Appellant is found to have jointly insured the subject tuk tuk with the 2nd Respondent, the Appellant was able to demonstrate that it was just a mere financier and was neither in possession nor control of the said motor vehicle at the time of the accident. Exoneration of the Appellant from liability by this court is to safeguard the Appellant from any execution and other adverse consequences that might ensue from the accident and subsequent proceedings.

28. I am further guided by the authorities cited by the Appellant which are as follows:-

(a) CIVIL APPEAL E056 OF 2021: Consolidated Bank of Kenya Limited vs Mwangi & Another, the court stated that: “Ownership of a motor vehicle does not, of itself, establish liability for an accident. The plaintiff must prove that the owner is vicariously liable for the acts of the driver of the motor vehicle by showing that the driver is an employee or agent”.

(b) ML HCCC No. 483 of 2012: Jane Wairimu Turanta v Githae John Vickery and Equity Bank Limited & Munene Don [2012] eKLR where the court held that as whether the owner who has a financial interest in a motor vehicle has control over the driver, which is at the heart of this appeal, our courts have held that a Financier’s only interest in the security is to secure the repayment from the owner and it is not in control of the motor vehicle for that reason.

(c) In Ali Abdi Dere v Hash Hauliers Limited & Another MKS HCCC No. 16 of 2014 [2018] eKLR the court held that the position of a financier was merely to protect its interest in the motor vehicle it had financed and could not be held vicariously liable for the actions of its driver.

(d) In Mohammed Hassan Musa and Another v Peter Mailanyi and Another NYR CA Civil Appeal No. 243 of 1998 [2000] eKLR where the court stated that: “There is one other aspect of this appeal that we feel we must comment on. The plaintiff is an Advocate of the High Court of Kenya but in his attempt to realize the decree he resorted to what in effect amounted to jungle law. The third defendant, Diamond Trust (K) Ltd, which had nothing to do with the accident but had merely only financed the purchase of the motor vehicle which caused the accident was wrongly sued and attached”.

Quantum

29. It is trite law that an appellate court should be slow to reverse a lower court on the question of the amount of damages unless it is satisfied that the trial court acted on a wrong principle of law or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered.  The question is not what the appellate court would award but whether the trial court acted on the wrong principles (See Maraga V Musila (1984) 1 KLR 251). 

30. I have considered the awards on damages as was awarded by the trial magistrate and I find them to be based on the correct principles of assessing damages in personal injury claims. I will therefore not disturb the same on this appeal.

Disposition

The upshot is that, court finds that the appeal has merit and makes the following orders;

a. The trial court’s judgement on liability against the Appellant is hereby set aside and Paul Kioko Mutisya the 2nd Respondent herein is held 100% vicariously liable.

b. The Appellant is exonerated from any liability on the accident herein.

c. The trial court’s award on quantum is confirmed together with costs and interest at court rates.

d. The Appellant shall have the costs of the Appeal assessed at Kenya Shillings twenty thousands (Ksh.20,000/= payable by Paul Kioko Mutisya the 2nd Respondent herein.

Stay of execution of 30 days is granted. Right of Appeal 30 days.

Orders accordingly, file closed.

JUDGMENT DATED, SIGNED & DELIVERED AT MACHAKOS THIS 14TH OCTOBER 2026

NOEL I. ADAGI

JUDGE

In the presence of:

Mr. Nyongesa for the Appellant

Ms. Khadiesi h/b for Mr. Muta Makau for 1st Respondent