How a signature cost businessman car after accident

On November 30, 2016, Michael Kariuki hired his car to Francis Gachary for Sh2000 but failed to sign him a standard agreement clause, making him liable for loss and damage in case of an accident.

Kariuki agreed with Gachary verbally that he would use his car within Mombasa town and that he would be responsible for damages in case of an accident arising from his fault.

On the same day, Gachary was involved in an accident in the Kakotoni area, Mariakani, along the Mombasa-Nairobi Highway with another vehicle, and the impact extensively damaged and wrote off the car.

The investigators blamed Gachary for the accident and charged him with causing an accident by reckless driving.

Kariuki sued Gachary, seeking the sum of Sh600,000 together with interest at the bank rate from the date of hire until settlement of the suit.

He also sought the sum of Sh7,000 together with interest at the court rate from the date of filing suit for settlement of the same.

However, the trial magistrate dismissed Kariuki’s claim and noted that the exhibited agreement signed by Gachary did not have a clause making him liable for loss and damage.

The magistrate said that Kariuki failed to point out any specific clause on the signed handwritten agreement of hire that shows Gachary was to be responsible in case of an accident.

The magistrate held that Gachary was not liable for negligence, contrary to the police investigation that found him negligent and responsible for the accident that saw him charged in court.

Additionally, the magistrate noted that the exhibited standard form of agreement, which contains the said clause, was not signed by Gachary.

The magistrate said that under the standard form of agreement, the obligation on Gachary to indemnify Kariuki for any damage to or loss of the vehicle would only arise if Gachary were negligent.

Aggrieved, Kariuki filed an appeal before Justice Mugure Thande seeking to overturn the magistrate’s decision and have the said compensation from Gachary.

Kariuki faulted the magistrate for dismissing the suit because he failed to point out the specific clause in the handwritten agreement between the parties showing that Gachary was to be liable for the loss and damage of the vehicle.

He said that the magistrate erred in holding that there was no meeting of minds to make Gachary liable and that he failed to prove his case on a balance of probabilities.

Kariuki said that Gachary pleaded not guilty, and the court convicted him, and the court could not use the said judgement as an exhibit in the trial because the claim and compensation matters proceeded at the same time.

He said that as the hiree, Gachary retained the original copy of the said written agreement with conditions overleaf.

Kariuki contends that the handwritten agreement was in standard form, and he retained the carbon copy, while Gachary had the original, which had all the conditions overleaf.

Further, he exhibited the sample standard form of agreement to demonstrate what the original, which Gachary had declined to produce, looked like.

In his defence, Gachary submitted that the agreement between him and Kariuki was oral and that he met the two conditions imposed by Kariuki’s agent, which included production of his driver’s licence and payment of Sh2,000.

He added that they did not sign an agreement when they hired him and that he signed it only after the accident to get insurance compensation.

Gachary said that because Kariuki was in the car hire business, people presumed he had comprehensively insured his vehicles and that no one can anticipate or predict an accident, nor can anyone deliberately cause one.

Gachary told the judge that allowing the appeal would be tantamount to rewriting the contract for the parties.

In her decision, Justice Thande upheld the magistrate’s ruling that Kariuki failed to meet the burden of proof required to establish that there was an agreement with Gachary making him liable for any damage or loss to the vehicle.

Justice Thande said the evidence on record established a preponderance of probability in favour of Gachary.

“I accordingly find no fault in the finding of the trial court that the Respondent (Kariuki) was not contractually liable for the loss of or damage to the vehicle,” said Justice Thande.

The judge said there is nothing in the signed agreement to indicate that the words “Mombasa Town” meant that the vehicle was to be used within Mombasa town only.

The judge stated that the displayed standard form of agreement includes the terms and conditions for hiring vehicles, but what Kariuki exhibited is not signed by Gachary.

Justice Thande ruled that the signed agreement was not a carbon copy of the standard agreement because the two documents are different.

The judge said that, contrary to Kariuki’s claim, the clause making a hirer of a vehicle liable for all damages to the vehicle is on the front page of the standard agreement and not overleaf.

Justice Thande said that the exhibited agreement signed by Gachary does not contain any undertaking that he would compensate Kariuki for any loss or damage caused to the vehicle.

“One would also wonder why the Appellant would not retain the portion of the agreement that contains such a critical condition. Taking the foregoing into consideration, I find that the alleged undertaking on the part of the Respondent to compensate the Appellant is unsupported by evidence,” said Justice Thande.