1. This appeal arose from the Judgment delivered by Hon. Nyariki J. (SRM) on 30th April 2024 in Mombasa Civil Suit No. 1273 of 2022. The Appellant seeks orders that;
a. This Court be pleased to allow this appeal with costs.
b. The Judgment delivered on 30th April 2024 be set aside, and the award made therein be re-assessed.
c. The Honourable Court do apportion liability to the plaintiff accordingly.
d. Costs of this appeal be borne by the Respondent.
2. The memorandum of appeal dated 27th May 2024 cited four (4) grounds of appeal as follows;
i. The Learned Trial Magistrate erred in law and fact by holding the appellant 100% liable for the occurrence of the accident.
ii. The Learned Trial Magistrate erred in law and fact in determining that the Appellant is vicariously liable for the acts of the 2nd Respondent.
iii. The Learned Trial Magistrate erred and misdirected himself and failed to apply precedents and tenets/principles of the law applicable in awarding damages.
iv. The Learned Trial Magistrate erred and misdirected himself by awarding a sum in respect of damages which was inordinately high in the circumstances, occasioning a miscarriage of justice.
Background
3. The appeal arises from the judgment delivered on 30 April 2024 in Mombasa CMCC No. E1273 of 2022, where the trial court found the Defendants jointly and severally liable at 100% for injuries sustained by the minor Plaintiff, following a road traffic accident involving motorcycle registration number KMEX 784B.
4. The Appellant, Abson Motors Limited, challenges the finding on liability on the basis that although it remained the registered owner of the motorcycle, it had already sold and delivered possession of the motorcycle to the 2nd Respondent, Rodgers Tinga Ngombo, before the accident occurred. The Appellant contends that it neither exercised control over the motorcycle nor benefited from its use and therefore could not be held vicariously liable.
5. The 1st Respondent opposes the appeal and maintains that the trial court properly found liability. The 1st Respondent further argues that the Appellant failed to properly pursue the procedure under Order 1 Rule 24 of the Civil Procedure Rules against the 2nd Respondent and therefore cannot shift responsibility.
6. The appeal was canvassed by way of written submission. This Court has duly considered the entire record and the parties’ submissions as well as the Judgment referred to. The issue for determination is as follows:
a. Whether the appeal has merit.
b. Who bears the costs.
Analysis and Determination
7. This being a first appeal, this Court is under a duty to re-evaluate and reassess the entire evidence on record and draw its own independent conclusions while bearing in mind that the trial court had the advantage of seeing and hearing the witnesses testify. This principle is well settled in Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123 and Sumaria & Another v Allied Industrial Ltd (2007) 2 KLR.
8. Sections 107, 108 and 109 of the Evidence Act, Cap. 80 Laws of Kenya, place the legal burden of proof upon the party who asserts the existence of a fact. As was stated by the Court of Appeal in Antony Francis Wareham t/a AF Wareham & 2 Others v Kenya Post Office Savings Bank [2004] eKLR, parties are bound by their pleadings and must prove the facts pleaded on a balance of probabilities. Similarly, in Kangethe v Karagita [EA] Ltd & another [2026] KEELC 3696 (KLR), the court held that it is clear that the burden of proof rests with he who claims to prove his case to the standard of a balance of probabilities.
9. The issue of burden of proof is an issue of fact, but the standard of proof is an issue of law. This court is to determine whether the evidence on record met the standard of proof in civil cases.
10. Upon re-evaluating the record, I respectfully find myself unable to agree with the conclusions reached by the learned trial magistrate.
11. This being a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify.
12. The Appellant's principal complaint is that the learned trial magistrate erred in holding it 100% liable and vicariously liable for the acts of the 2nd Respondent despite evidence showing that motorcycle registration number KMEX 784B had been sold to and was in the possession of the 2nd Respondent before the occurrence of the accident.
13. The record reveals that the Appellant placed before the trial court a sale receipt, tax invoice, delivery note, and indemnity agreement evidencing the sale and delivery of the subject motorcycle to the 2nd Respondent. The said documents demonstrate that possession and control of the motorcycle had passed to the 2nd Respondent notwithstanding that formal transfer of registration had not been effected at the time of the accident.
14. The learned trial magistrate correctly appreciated that the Appellant remained the registered owner of the motorcycle. However, registration is not conclusive proof of ownership. Section 8 of the Traffic Act provides:
“The person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle.”
15. This merely creates a rebuttable presumption of ownership. That presumption may be displaced by evidence showing that beneficial ownership, possession and control had passed to another person.
16. The Court of Appeal in Securicor Kenya Limited -vs- Kyumba Holdings Limited [2005] 1KLR 748 observed that;
“We think that the appellant had, by the evidence it led, proved on a balance of probability that it was not the owner of KWJ 816 at the time the accident occurred since it had sold it. Our holding finds support in the decision in OSAPIL v. KADDY [2000] 1 EA 187 in which it was held by the Court of Appeal of Uganda that a registration card or logbook was only prima facie evidence of title to a motor vehicle and the person whose name the vehicle was registered was presumed to be the owner thereof unless proved otherwise. The appellant had, indeed, proved otherwise....”
17. Courts have consistently recognized that where possession, control and beneficial interest have passed to a purchaser, the registered owner may cease to bear responsibility for the vehicle's use.
18. Having reconsidered the evidence, I am satisfied that the Appellant discharged its burden of rebutting the statutory presumption under section 8 of the Traffic Act. The documentary evidence produced established that the motorcycle had been sold and delivered to the 2nd Respondent and that the Appellant had relinquished possession and control thereof before the accident occurred.
19. There was no evidence demonstrating that the rider of the motorcycle was acting as an employee, servant or agent of the Appellant. Neither was there evidence that the Appellant exercised any control over the motorcycle at the material time. In Morgan -Vs- Launchbury [1972] 2 All ER 606, the House of Lords held that ownership alone does not impose liability unless the driver was acting as the owner's servant or agent or was driving under the owner's authority.
Similarly, in Edward Mungai Waweru -Vs- Samson Ochieng Kagunda & Another [2017] eKLR, the High Court reiterated that proof of ownership without proof of agency cannot sustain liability.
20. In the circumstances, the learned trial magistrate fell into error in imposing liability upon the Appellant solely on account of its continued registration as owner of the motorcycle. Liability ought to have attached to the 2nd Respondent who had acquired possession, control and beneficial ownership of the motorcycle and who was responsible for its operation at the material time.
21. As regards quantum, although the appeal challenged the award of damages as excessive, no sufficient basis was laid to warrant interference with the trial court's assessment. The Court of Appeal in Kemfro Africa Ltd v A. M. Lubia & Another (1988) 1 KAR 727 set out the guiding principles that an appellate court should apply when considering an appeal against an award of damages. The Court stated as follows: -
"The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the Judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.
22. The principles governing appellate interference with awards of damages were not demonstrated to have been met. Consequently, the award of damages is upheld.
23. Following the foregoing, the upshot is that the following orders do hereby issue;
a. The appeal has merit and is hereby allowed.
b. The judgment of the subordinate court holding the Appellant liable is hereby set aside and, in its place, an order that the 2nd Respondent, Rodgers Tinga Ngombo, shall bear 100% liability for the accident and judgment is entered for the plaintiff as prayed for in the plaint against the 2nd Respondent.
c. The awards made by the subordinate court on quantum are hereby upheld and shall be recoverable against the 2nd Respondent.
d. The Appellant shall have the costs of the appeal.
Dated, and delivered virtually at Mombasa this 6th day of August, 2026
………………………..
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of: -
Ms. Katisya Advocate for the Appellant
Mr. Atancha Advocate for the Respondent
Ms. Salwa, Court Assistant
a. This Court be pleased to allow this appeal with costs.
b. The Judgment delivered on 30th April 2024 be set aside, and the award made therein be re-assessed.
c. The Honourable Court do apportion liability to the plaintiff accordingly.
d. Costs of this appeal be borne by the Respondent.
2. The memorandum of appeal dated 27th May 2024 cited four (4) grounds of appeal as follows;
i. The Learned Trial Magistrate erred in law and fact by holding the appellant 100% liable for the occurrence of the accident.
ii. The Learned Trial Magistrate erred in law and fact in determining that the Appellant is vicariously liable for the acts of the 2nd Respondent.
iii. The Learned Trial Magistrate erred and misdirected himself and failed to apply precedents and tenets/principles of the law applicable in awarding damages.
iv. The Learned Trial Magistrate erred and misdirected himself by awarding a sum in respect of damages which was inordinately high in the circumstances, occasioning a miscarriage of justice.
Background
3. The appeal arises from the judgment delivered on 30 April 2024 in Mombasa CMCC No. E1273 of 2022, where the trial court found the Defendants jointly and severally liable at 100% for injuries sustained by the minor Plaintiff, following a road traffic accident involving motorcycle registration number KMEX 784B.
4. The Appellant, Abson Motors Limited, challenges the finding on liability on the basis that although it remained the registered owner of the motorcycle, it had already sold and delivered possession of the motorcycle to the 2nd Respondent, Rodgers Tinga Ngombo, before the accident occurred. The Appellant contends that it neither exercised control over the motorcycle nor benefited from its use and therefore could not be held vicariously liable.
5. The 1st Respondent opposes the appeal and maintains that the trial court properly found liability. The 1st Respondent further argues that the Appellant failed to properly pursue the procedure under Order 1 Rule 24 of the Civil Procedure Rules against the 2nd Respondent and therefore cannot shift responsibility.
6. The appeal was canvassed by way of written submission. This Court has duly considered the entire record and the parties’ submissions as well as the Judgment referred to. The issue for determination is as follows:
a. Whether the appeal has merit.
b. Who bears the costs.
Analysis and Determination
7. This being a first appeal, this Court is under a duty to re-evaluate and reassess the entire evidence on record and draw its own independent conclusions while bearing in mind that the trial court had the advantage of seeing and hearing the witnesses testify. This principle is well settled in Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123 and Sumaria & Another v Allied Industrial Ltd (2007) 2 KLR.
8. Sections 107, 108 and 109 of the Evidence Act, Cap. 80 Laws of Kenya, place the legal burden of proof upon the party who asserts the existence of a fact. As was stated by the Court of Appeal in Antony Francis Wareham t/a AF Wareham & 2 Others v Kenya Post Office Savings Bank [2004] eKLR, parties are bound by their pleadings and must prove the facts pleaded on a balance of probabilities. Similarly, in Kangethe v Karagita [EA] Ltd & another [2026] KEELC 3696 (KLR), the court held that it is clear that the burden of proof rests with he who claims to prove his case to the standard of a balance of probabilities.
9. The issue of burden of proof is an issue of fact, but the standard of proof is an issue of law. This court is to determine whether the evidence on record met the standard of proof in civil cases.
10. Upon re-evaluating the record, I respectfully find myself unable to agree with the conclusions reached by the learned trial magistrate.
11. This being a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify.
12. The Appellant's principal complaint is that the learned trial magistrate erred in holding it 100% liable and vicariously liable for the acts of the 2nd Respondent despite evidence showing that motorcycle registration number KMEX 784B had been sold to and was in the possession of the 2nd Respondent before the occurrence of the accident.
13. The record reveals that the Appellant placed before the trial court a sale receipt, tax invoice, delivery note, and indemnity agreement evidencing the sale and delivery of the subject motorcycle to the 2nd Respondent. The said documents demonstrate that possession and control of the motorcycle had passed to the 2nd Respondent notwithstanding that formal transfer of registration had not been effected at the time of the accident.
14. The learned trial magistrate correctly appreciated that the Appellant remained the registered owner of the motorcycle. However, registration is not conclusive proof of ownership. Section 8 of the Traffic Act provides:
“The person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle.”
15. This merely creates a rebuttable presumption of ownership. That presumption may be displaced by evidence showing that beneficial ownership, possession and control had passed to another person.
16. The Court of Appeal in Securicor Kenya Limited -vs- Kyumba Holdings Limited [2005] 1KLR 748 observed that;
“We think that the appellant had, by the evidence it led, proved on a balance of probability that it was not the owner of KWJ 816 at the time the accident occurred since it had sold it. Our holding finds support in the decision in OSAPIL v. KADDY [2000] 1 EA 187 in which it was held by the Court of Appeal of Uganda that a registration card or logbook was only prima facie evidence of title to a motor vehicle and the person whose name the vehicle was registered was presumed to be the owner thereof unless proved otherwise. The appellant had, indeed, proved otherwise....”
17. Courts have consistently recognized that where possession, control and beneficial interest have passed to a purchaser, the registered owner may cease to bear responsibility for the vehicle's use.
18. Having reconsidered the evidence, I am satisfied that the Appellant discharged its burden of rebutting the statutory presumption under section 8 of the Traffic Act. The documentary evidence produced established that the motorcycle had been sold and delivered to the 2nd Respondent and that the Appellant had relinquished possession and control thereof before the accident occurred.
19. There was no evidence demonstrating that the rider of the motorcycle was acting as an employee, servant or agent of the Appellant. Neither was there evidence that the Appellant exercised any control over the motorcycle at the material time. In Morgan -Vs- Launchbury [1972] 2 All ER 606, the House of Lords held that ownership alone does not impose liability unless the driver was acting as the owner's servant or agent or was driving under the owner's authority.
Similarly, in Edward Mungai Waweru -Vs- Samson Ochieng Kagunda & Another [2017] eKLR, the High Court reiterated that proof of ownership without proof of agency cannot sustain liability.
20. In the circumstances, the learned trial magistrate fell into error in imposing liability upon the Appellant solely on account of its continued registration as owner of the motorcycle. Liability ought to have attached to the 2nd Respondent who had acquired possession, control and beneficial ownership of the motorcycle and who was responsible for its operation at the material time.
21. As regards quantum, although the appeal challenged the award of damages as excessive, no sufficient basis was laid to warrant interference with the trial court's assessment. The Court of Appeal in Kemfro Africa Ltd v A. M. Lubia & Another (1988) 1 KAR 727 set out the guiding principles that an appellate court should apply when considering an appeal against an award of damages. The Court stated as follows: -
"The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the Judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.
22. The principles governing appellate interference with awards of damages were not demonstrated to have been met. Consequently, the award of damages is upheld.
23. Following the foregoing, the upshot is that the following orders do hereby issue;
a. The appeal has merit and is hereby allowed.
b. The judgment of the subordinate court holding the Appellant liable is hereby set aside and, in its place, an order that the 2nd Respondent, Rodgers Tinga Ngombo, shall bear 100% liability for the accident and judgment is entered for the plaintiff as prayed for in the plaint against the 2nd Respondent.
c. The awards made by the subordinate court on quantum are hereby upheld and shall be recoverable against the 2nd Respondent.
d. The Appellant shall have the costs of the appeal.
Dated, and delivered virtually at Mombasa this 6th day of August, 2026
………………………..
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of: -
Ms. Katisya Advocate for the Appellant
Mr. Atancha Advocate for the Respondent
Ms. Salwa, Court Assistant