By way of a plaint filed on 10th August, 2020, the Plaintiff/Respondent moved the court against the Defendant/Appellant for the following prayers;
(a) Special damages as per paragraph 5
(b) General Damages
(c) Costs of and incidental to the suit
(d) Interest on (a), (b) and (c) above.
The Respondent’s claim against the Defendant/Appellant arose from an accident that occurred on 3rd July, 2020 involving motor cycle Reg. No. KMCE 495 D and motor vehicle Reg. No. KCW 078 T. The Respondent was a pillion passenger in the subject motor cycle along Nyanchwa- Riamasagara road when near Getombe Primary school when motor vehicle Reg. No. KCW 078 T owned by the Defendant while being driven/ managed and / or controlled by the Appellant’s driver permitted the said motor vehicle to violently collide with the said motor cycle as a consequence of which the Plaintiff / 1stRespondent sustained injuries and suffered loss and damage.
By an order dated 15th June 2021 the Defendant was granted leave to bring 3rd Party Notice dated 9th July 2021 where it was sought that the Appellant herein enters appearance and dispute or admit if the subject motor cycle was registered in its name and that the said motor cycle caused the accident in which the Plaintiff sustained injuries.
The Appellant entered appearance and filed statement of defence dated 26th July 2021 denying liability.
Upon the Trial Magistrate considering the evidence tendered by the Respondents witnesses and the evidence of the Appellant’s witness it was established that the Appellant may not have been in control and/ or control of the accident motorcycle but it was still the registered owner and it had the duty to enjoin the person it had allegedly sold the motor cycle to in the proceedings. The Trial Magistrate determined that in the absence of the Appellant enjoining the person it sold the motor cycle to the court could not apportion liability to a person who is not a party in the suit. She found that the driver of the suit motor vehicle was not to blame for the accident as it is the rider of the motor cycle who overtook when it was not safe to do so and collided with the oncoming vehicle that belonged to the Defendant. The suit against the Defendant was dismissed.
The Trial Magistrate found the 3rd Party liable and awarded general damages of Kshs. 450,000/= together with special damages of Kshs. 6,520/=with costs and interest. Interest on special damages to accrue from date of filing suit and general damages to accrue interest from date of judgement.
The Appellant being dissatisfied with the decision and orders of the trial court preferred an appeal before this court vide a Memorandum of Appeal dated 19th December 2023 on 30 grounds:
1. THAT the Learned Trial Magistrate erred in law and fact in making a finding on liability against the Appellant on the basis of failing to enjoin the purchaser of the motorcycle Reg. No. KMCE 493D as a third party to the suit even after acknowledging that the Appellant had sold the said motorcycle and it was in possession or control over the said motorcycle.
2. THAT the Learned Trial Magistrate erred in law and fact by failing to consider the provisions of law under Order 1 Rule 15 of the Civil Procedure Rules 2010(Revised 2020) with regards to enjoining Third Party.
3. THAT the Learned Trial Magistrate erred in law and fact by holding the Appellant liable for the accident and further by misdirecting herself on the legal principles of enjoining a Third Party to the suit. The Learned Trial Magistrate failed to appreciate that the Appellant had a choice under 2010 Rules (Revised in 2020)
4. THAT the Learned Trial Magistrate erred in law and fact by failing to appreciate that after the Appellant had sold the motorcycle it became a stranger to all the activities pertaining to the said motorcycle.
5. THAT the Learned Trial Magistrate erred in law and fact by failing to appreciate that there exists various forms of ownership i.e. beneficial, possessory, and legal owner who are not necessarily the registered owners.
6. THAT the Learned Trial Magistrate erred in law and fact by failing to appreciate the statutory requirements set down by NTSA for dealers to have motor vehicles and motorcycles to be registered in their names for purposes of sale and that the Appellant’s name appearing on the NTSA records as only an owner by presumption.
7. THAT the Learned Trial Magistrate erred in law and fact by finding the Appellant liable for the accident even after appreciating that the Appellant was not in control of the said motorcycle and the only connection the Appellant had with the said motorcycle was the fact that the said motorcycle was registered under the Appellant’s name.
8. THAT the Learned Trial Magistrate erred in law and fact by failing to appreciate that the motorcycle was not in possession and/or control of the Appellant and therefore it was the responsibility of the beneficial and actual owner to have the same registered in his name, which failure greatly prejudiced the Appellant and that the said motorcycle was illegally on the road.
9. THAT the Learned Trial Magistrate erred in law and fact by apportioning liability against the Appellant despite having admitted that the Appellant had sold the motorcycle and it was not in actual possession, control and use of the of the said motorcycle.
10. THAT the Learned Trial Magistrate erred in law and fact by failing to consider the issue of vicarious liability between the Appellant and the rider of the suit motorcycle without any evidence proving liability against the Appellant.
11. THAT the Learned Trial Magistrate failed to address the issue of vicarious liability which was one of the defenses of the Appellant.
12. THAT the Learned Trial Magistrate erred in law and fact in making a finding on liability against the Appellant despite there being no evidence or nexus to prove that there was an agent/servant and/or any employment relationship existing between the Appellant and the rider of the suit motorcycle at the time of the alleged accident.
13. THAT the Learned Trial Magistrate further erred in law and fact in making a finding on liability against the Appellant despite there being no evidence showing that the rider of the suit motorcycle was acting on behalf of the Appellant and/ or using the said motorcycle on the instructions of the Appellant at the material time of the accident.
14. THAT the Learned Trial Magistrate erred in law and fact in making a finding of liability against the Appellant despite there being no evidence showing that the rider of the motorcycle was in the course of lawful employment with the Appellant at the time of the accident.
15. THAT the Learned Trial Magistrate further erred in law and fact by making a finding on vicarious liability on the part of the Appellant as regards the rider in the suit when there was actually no evidence tendered by the 1st and 2nd Respondents whilst the Appellant presented the court with sufficient evidence that the rider was completely unknown to the Appellant.
16. THAT the Learned Trial Magistrate erred in law and fact in failing to address the issues of owner in possession and the owner enjoying the use and benefits from the use of the said motorcycle.
17. THAT the Learned Trial Magistrate erred in law and fact in entering 100% liability against the Appellant when no evidence was tabled to show that the Appellant was in control, had authority or derived any benefits from the use of the motorcycle which allegedly caused the accident.
18. THAT the Learned Adjudicator erred in law and fact in failing to appreciate and consider the evidence of the Appellant with regards to the sale of the motorcycle in issue prior to the date of the said accident,
19. THAT the Learned Trial Magistrate erred in law and fact by failing to appreciate that the Appellant had discharged the case against it, proving its burden to the standard required by law.
20. THAT the Learned Trial Magistrate erred in law and fact by failing to consider the evidence adduced by the Appellant to prove that it was neither the owner nor did it derive any benefit from the use of the suit motorcycle Reg. No. KMCE 495D having sold it prior to the date of the accident.
21. THAT the Learned Trial Magistrate erred in law and fact by failing to consider the position of law under the Evidence Act with regards to ownership.
22. THAT the Learned Trial Magistrate erred in law and fact by applying improper standard of proof whereas the Appellant had presented the trial court with sufficient proof to meet the legally required threshold on balance of probability.
23. THAT the Learned Trial Magistrate erred in law and fact by failing to consider the testimony of the Appellant’s witness which proved the Appellant’s non involvement with the subject matter of the suit and there was no relationship between the rider and the Appellant herein.
24. THAT the Learned Trial Magistrate erred in law and fact by finding that the Appellant was the owner of the motorcycle Reg. KMCE 495 D despite evidence to the contrary.
25. THAT the Learned Trial Magistrate erred in law and fact by failing to appreciate the principles of stare decisis to the holding in the Court of Appeal authorities on the issues before the court holding contrary to the holding of the learned magistrate.
26. THAT the Learned Trial Magistrate erred in law and fact by disregarding the documentary evidence adduced by the Appellant, which evidence was not countered or otherwise disproved by more compelling evidence by the 2nd Respondent.
27. THAT the Learned Trial Magistrate erred in law and fact by holding the Appellant liable for the accident and further by misdirecting herself on the legal principles in awarding damages therein that were excessive in the circumstances.
28. THAT the Learned Trial Magistrate erred in law and fact by failing to acknowledge that the suit motorcycle was not in possession or actual ownership of the Appellant at the time of the accident and consequently holding it liable for the negligence as alleged by the 2nd Respondent. 1st and 2nd Respondents as against the Appellant by failing to consider the evidence tendered by the said Respondent on behalf of the Appellant.
It is proposed to ask the court for ORDERS THAT: -
The Appel be allowed
The entire judgement made by the Trial Magistrate, be set aside and the suit be dismissed.
The costs of the appeal and in the subordinate court be granted to the Appellant.
The brief history of the claim was that PW1 Johnson Keragori Onditi while travelling as a pillion passenger on 3rd July 2020 along Nyanchwa-Suneka road was involved in RTA. He recorded his statement and adopted it as his evidence in chief. (Adopted)
After the accident he went to Kisii Teaching and Referral Hospital and allowed to go home. He produced clinic card P. E 1 and Treatment notes PMFI 2. He said that he also recorded a statement at Kisii Police Traffic Base police PMFI 3 and he was examined and medical report prepared by Mr. Nyameino PMFI 4(a) who issued a receipt P. E4(b). Police Abstract was prepared and issued PMFI 5. PW1 also identified and produced Demand Notice P.E 6
The injuries he sustained are particularized in his plaint and support documents. PW1 said he had not fully recovered and still had pain on his leg and stomach. He said he had never been compensated for the injuries he sustained. He prayed to be compensated
In cross examination by Opondo Advocate PW1 said that he was a pillion passenger and the bike was being ridden on the left side of the road while the vehicle was coming from the opposite side from Suneka as they were heading to Suneka. He said it was not true that the bike hit the vehicle’s mud guard. He said the vehicle came to their side. He said he suffered a fracture on one leg and it is not true that the treatment notes captured only bruises to the ankle. PW1 said he had not fully recovered but did not have recent prescriptions.
In cross-examination by Ondieki PW1 said that he was heading to Suneka from Nyanchwa and he was a pillion passenger on motorcycle KMCE 495D. He said he paid Kshs. 50. He said the bike was being ridden by its owner but he did not know his name. He said he reported that he had been hit by the motor cyclist and gave the registration number and he was issued with a police abstract for which he paid Kshs. 300. PW1 said that after the accident he did not get the bike at the station. He said the bike collided with motor vehicle KCE 078T as per the information in his statement. He said the bike was on the left lane while the vehicle was on the right coming from Suneka and they were moving on opposite directions. He said it was 5pm and it was not dark. PW1 said he saw the vehicle approaching before it hit them.
PW1 said that he did not know if the rider recorded a statement and he did not know the owner of the vehicle. He said it is Erick Ombati driver who was driving the vehicle. He said he sued the person who was driving the vehicle. He also said that Erick Ombati is the owner of the vehicle and he will produce the driver. PW1 said that he paid the rider Kshs. 50 as agreed. He said he had not seen the rider since the accident occurred as he relocated to Nakuru. He said he was injured on his right leg and stomach. That he suffered a fracture which was plastered and he left for home. PW1 blamed the owner of the vehicle for the accident.
In re-examination PW1 identified PMFI 2 treatment notes which indicated plaster was applied on his leg and medication given for the stomach. He said he had not fully recovered. He said the vehicle that hit them was from the opposite direction. It veered off its lane. The vehicle is KCW 087T. He said he still takes medication which he purchases over the counter when in pain.
PW2 Daniel Nyameino Senior Clinician working at Kisii Teaching and Referral Hospital produced the plaintiff’s P3 form, print out of treatment notes, clinic card and medical report dated 9.7.2020. He said he relied on treatment notes and X-ray films to prepare the report. He said the plaintiff was involved in road traffic accident on 3.7.2020 and sustained blunt abdominal trauma and contusion to right ankle joint. He was treated at Kisii Teaching and Referral Hospital on 3.7.2020 injuries as per plaint.
A reduction of the dislocation was done and application of POP. Right lower limb had a POP. He sustained right tibia/fibula fracture, right ankle joint dislocation and soft tissue injuries. He produced Medical Report as exhibit P.E 4(a) and the P 3 as Ex P3. The injuries were approximately 4 – 5 days old.
He also produced the clinic appointment card and print out from Kisii Teaching and Referral Hospital of treatment notes P. E 1 and P. E 2
In cross-examination by Opondo PW2 said the injuries were likely to heal but the fracture was still in the process of healing. He said he had not seen the patient again so he could not confirm if they have healed or not.
PW3 No. 88300 PC Moses Kasera attached to Kisii police station and performing traffic duties. Testified that the plaintiff was involved in road traffic accident on 3.7.2020 at about 1730hours at Getembe primary school. Brief circumstances are that the motor cycle was being ridden by Henry Otsotsi while trailing a motor vehicle which slowed due to road patches but the rider did not slow. Instead, he made an effort to overtake the vehicle. He veered to the right and collided with oncoming vehicle KCW 078T which was headed in the opposite direction. The collision was on the rear mud guard on the right rear wheel.
The plaintiff was a pillion passenger and was injured. He was rushed to Kisii Teaching and Referral Hospital and later came for the abstract. PW3 was the investigating officer. They reported parties to the insurance and the matter was pending under investigations. He produced the abstract as exhibit PMFI 1 PE 5.
In cross-examination by Opondo PW3 said that the motor cyclist ought to have kept distance. It collided with the vehicle. The motor cyclist did not slow down.
In cross-examination by Ondieki PW3 said he investigated the matter together with PC Gichuki as the leading investigating officer. The accident was on 3.7.2020. The motor cycle was KMCE 495D. He said the motor cycle was trailing an unknown vehicle and the accident occurred when the unknown motor vehicle was being overtaken by the motor cycle. Nobody had a right of passage. The motor cycle was overtaking. The road is marked. PW3 said that he took measurements of the road and established that the cause of the accident was overtaking. He said they did not finalize investigations as they did not find an independent eye witness. The matter was not referred to court and nobody was charged. The matter is pending under investigations. This matter is now in court on a civil claim for further determination. He said it is Henry Otsotsi who was riding the motor cycle. That when they visited the scene and he was there and they captured the name before he was rushed to hospital. He said the rider recorded a statement but he did not have the file with him. He said he could not recall if the rider was the owner of the bike or was in control but he knew that he was the rider. He said he was not aware of any case between Henry Nyakina and Erick Ombati. He said the name in the abstract is for the policy holder of the vehicle and the matter was still pending under investigations. He said he had nothing to say about the plaintiff paying Kshs. 50 but he knew he was a pillion passenger. Both the rider and the plaintiff were parties in this accident. He said he did not get an independent witness. The accident occurred at about 5.30pm on 3.7.2020. He said he visited the scene immediately after the accident and there were pedestrians but none was willing to record a statement. He said the motor cycle was TVS star but he did not have the police file so he did not know who owned the bike. He could not recall if he required Henry Otsotsi to produce his licence or if he needed him to avail proof of being employed by car and general.
DW1 Eric Ombati a Legal Officer testified that on 3.7.2020 an accident occurred between his lorry and motor cycle. He relied on his statement as evidence in chief (Adopted)
In cross-examination by Nyangosi he said that KCW 078 T was his vehicle and it was involved in an accident with motor cycle. His said his vehicle was inspected but he forgot to file the inspection report. He said his vehicle was insured by APA (comprehensive). He said he does not know if Johnson Keragori was injured and who he was on the motor bike.
In cross-examination by Ondieki DW1 said that the vehicle was KCW 078T and the accident was on 3.7.2020. He said his driver was Marwa Moire Joshua. He said he was not the one driving and he did not witness the accident. He said that what he recorded in his statement is what the police told him. He said that the driver passed on during the COVID 19 but did not record any statement with the police. He said he was not aware his vehicle was blamed for the accident. He said if there is proof that his vehicle was found to be unroadworthy then he will accept. The turn boy did not record a statement because he did not find it in the report. He said he did not know why the turn boy did not record a statement. He could not tell who was riding the motor cycle.
This appeal was canvassed by way of written submissions.
The Appellant’s submissions are dated 4th December 2024 consolidated the 31 grounds of appeal and raised the following issues for determination
1. Whether the trial Magistrate erred in finding the Appellant/ Third Party as the owner of the motorcycle registration number KMCE 495D?
2. Whether the trial Magistrate erred in finding the Appellant/ Third Party liable for the accident?
3. Whether the trial Magistrate erred in finding the Appellant/Third Party liable for failing to take-out Third-Party proceedings?
4. Whether the trial magistrate erred by not appreciating the evidence adduced when rendering the judgement?
5. Costs
On whether the trial magistrate erred in finding the appellant/ third party as the owner of the motorcycle registration number KMCE 495D) the Appellant’s Counsel submitted that from the documents tendered in court, the 2nd Respondent/Defendant instituted the claim against the Appellant/Third Party presumably due to the names of the Appellant/Third Party appearing in the motor vehicle search records by the National Transport and Safety Authority as the registered owner of the suit motorcycle and which outcome is the only reason 2nd Respondent/Defendant enjoined the Appellant/Third Party as a Third Party to the suit.
It was submitted that The National Transport and Safety Authority (NTSA) is a state agency established by an Act of Parliament in 2012 as the lead agency in road safety issues in Kenya and in charge of registration of all motor vehicles and motor cycles. In its notice dated 7th September 2020, the agency emphasized that registration of any unit will be as per customs entry. Therefore, the dealer or the importer should apply for the registration under their names and KRA PIN as per declaration of the Customs entry.
It was further submitted that The Appellant/Third Party's witness in his evidence testified that the Appellant/Third Party is in business of sale of motorcycles and three wheeler motor vehicles and it is a requirement for all dealers to have the motorcycles and motor vehicles they import being registered in their respective names and it was for that reason the Appellant/Third Party registered the suit motorcycle in its name and that the said motorcycle was sold and effected transfer and the same was released to the purchaser immediately upon purchase prior to the date of the alleged accident and that the Appellant/Third Party was not in any way in control or have any authority or derive any benefit from the use of the said motorcycle after the date of sale.
The Appellant submitted that trial Magistrate misdirected herself in finding the Appellant/Third Party liable for the accident the Appellant/Third Party having had sold the said motorcycle and that it was a statutory requirement to have the Appellant/Third Party register the said motorcycle in its name. The Appellant relied on the case of Toroitich v Kihe & another (Civil Appeal E124 of 2023) [2024] KEHC 251 (KLR) (24 January 2024) (Judgment) Justice R. N Nyakundi held that;
“41.0n this Limb, I agree with the respondent's submissions. The 2nd Respondent argued that it is a statutory requirement for all dealers and importers of motor vehicles and motorcycles to have the motor vehicles and motorcycles registered in the name of dealers and importers as per the declaration of the customs Entries.
42. The Respondent went a step further to reproduce the contents of a notice dated 07.09.2020 which states;
That registration of any unit will be as per customs entry. Therefore, the dealer or the importer should apply for the registration under their names and KRA PIN as per declaration of the Custom 's Entry.
44.1 could not agree more. I am satisfied that the said motor vehicle was sold to Meena Collections. The third party's witness evidence established that the third party is in the business of sale of motorcycles and as such it is required to have motorcycles and motor vehicles registered in their name but many at times they might not be the beneficial owners as is in this case.”
It was submitted that the police abstract dated 06/07/2020 produced in court does not indicate the details of the motorcycle registration number KMCE 495D or that the said motorcycle is owned and/or insured by the Appellant/ Third Party. That if the Appellant/ Third Party was the owner and/or insured of the said motorcycle; nothing would have been easier than the police to indicate as such in the police abstract.
The Appellant also relied on the case of Muhambi Koja v Said Mbwana Abdi 12015] eKLR where it was held thus:
"In a nutshell, a police abstract report or any other form of evidence will be proof of ownership of a vehicle and will displace the registration (log) book if it is demonstrated that the person named in the registration (log) book has since transferred and divested himself of its ownership to the person named in the abstract report or in that other form of evidence. "
In the authority of Abson Motors Limited v Tabitha Syombua Mutua & another 20191 eKLR it was held that;
"It was not proved to be the insured owner either. Normally, after an accident the insured owner's name appears on the police abstract and in this case the appellant's name did not appear on that police abstract produced in evidence... " Further, Appellant/ Third Party neither had control over the said motorcycle nor did it derive any benefits from its use. TPW during the hearing averred that Appellant/ Third Party does not own motorcycles for its own use and does not carry out boda boda business. The suit motorcycle is said to have been a boda boda and is said to have been ferrying the Plaintiff which activity is outside the scope of Appellant/ Third Party's business. The trial Magistrate in her judgement appreciated that the Appellant/ Third Party was not in control of the suit motorcycle at the time of the accident when she held that; "Whereas it is a fact that he Third Party was not in control of the accident motorcycle, it: still is the registered owner and the only connection to the motorcycle "
It was the Appellant's submissions that it was only a paper owner of the suit motorcycle and should not be held liable for the accident as it was not in possession and/or control of the said motorcycle at the time of the accident.
In the case of Securicor Kenya Limited v Ryumba Holdings Limited (2005) eKLR it was held that;
“In the case before us, it was proved that at the time of the accident the appellant was no longer the owner of KWJ 816. It had sold it to G.M. THANGWAA to whom possession had transferred. It appears that Mr. Karume had not been put into possession of it by the appellant. Moreover, KWJ 816 was not being driven by the appellant's driver or its employee on an occasion in which the appellant had any interest, matatu business not being its concern. There was no relationship whatsoever between the appellant and 2nd defendant. Indeed, there was no agency relationship. It is difficult to see thereof how the trial judge could import into the case the doctrine of vicarious liability. It was simply not applicable...Moreover, which we do not consider to be the position, the appellant was still owner by way of log book being in its name, such ownership is not sufficient to create vicarious liability for the negligence of everyone who happened to drive it . . . . . . 3'. In the appeal case of Gichira Peter-v- Lucy Wambura Ngaku & Another (2021) eKLR;
"Section 8 of the Traffic Act (Cap 403 of the Laws of Kenya) provide that;
“The person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle.”
The Appellant submitted further that Section 8 of the Traffic Act provides the general rule with regard to ownership of the motor vehicle but there may he circumstances where this may vary. Registration of a person is a prima facie evidence of ownership bur the contrary may be proved.
It was also submitted that the I St Respondent produced P. Exhibit 4 a copy of Records from the Registrar of motor vehicles which did indicate that the Appellant was the registered owner of the motor vehicle. However, the Appellant denied ownership of the motorcycle at the time of the accident and contends that he had sold it to the 2nd Respondent vide sale agreement dated 16/07/2008. The Appellant contended that on the same date 16/07/2008, the Respondent took possession of the motor vehicle thereby taking over all operations of the motor vehicle.
It was contended that motor vehicles change hands but the records are not amended to reflect the change immediately because there is usually a time lag between the sale and transfer of the motor vehicle and the registration of the motor vehicle. The section appreciates that the contrary may he proved and determined on the registration does not always reflect that fact.
It was further submitted that Section 8 of the Traffic Act contemplates that there may be actual, possessory or beneficial ownership of a motor vehicle which can exist independent of registration. That the fact of registration of a person as owner will not be taken as conclusive evidence of ownership as there are other alternative forms of ownership like actual ownership, beneficial owner and possessory ownership and where it is proved with other material evidence that the person registered was not the owner, that the other person will be deemed to be the owner.
That in this case the police abstract gave the name of the owner of the said motor vehicle as Regan Muchoki Kariuki who is the second Respondent? and from the material which was placed before the trial magistrate, there was no doubt that the Appellant only owned the motor vehicle on paper whereas the Respondent was the beneficial owner of the accident motor vehicle who was in possession at the time of the accident having bought it from the Appellant. The fact that the 2nd Respondent had insured the motor vehicle is conclusive evidence that he was in possession and was beneficially entitled to it.
The Appellant faulted the learned magistrate erred in holding that the Appellant was the owner of the vehicle and therefore failed to appreciate that though the Appellant was the owner on papers from the Registrar's Office, the contrary was proved with the evidence presented before the court that the Respondent was the beneficial owner of the vehicle at the time of the accident; the driver of the vehicle at the time of the accident was an agent and or servant of the 2nd Re
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(a) Special damages as per paragraph 5
(b) General Damages
(c) Costs of and incidental to the suit
(d) Interest on (a), (b) and (c) above.
The Respondent’s claim against the Defendant/Appellant arose from an accident that occurred on 3rd July, 2020 involving motor cycle Reg. No. KMCE 495 D and motor vehicle Reg. No. KCW 078 T. The Respondent was a pillion passenger in the subject motor cycle along Nyanchwa- Riamasagara road when near Getombe Primary school when motor vehicle Reg. No. KCW 078 T owned by the Defendant while being driven/ managed and / or controlled by the Appellant’s driver permitted the said motor vehicle to violently collide with the said motor cycle as a consequence of which the Plaintiff / 1stRespondent sustained injuries and suffered loss and damage.
By an order dated 15th June 2021 the Defendant was granted leave to bring 3rd Party Notice dated 9th July 2021 where it was sought that the Appellant herein enters appearance and dispute or admit if the subject motor cycle was registered in its name and that the said motor cycle caused the accident in which the Plaintiff sustained injuries.
The Appellant entered appearance and filed statement of defence dated 26th July 2021 denying liability.
Upon the Trial Magistrate considering the evidence tendered by the Respondents witnesses and the evidence of the Appellant’s witness it was established that the Appellant may not have been in control and/ or control of the accident motorcycle but it was still the registered owner and it had the duty to enjoin the person it had allegedly sold the motor cycle to in the proceedings. The Trial Magistrate determined that in the absence of the Appellant enjoining the person it sold the motor cycle to the court could not apportion liability to a person who is not a party in the suit. She found that the driver of the suit motor vehicle was not to blame for the accident as it is the rider of the motor cycle who overtook when it was not safe to do so and collided with the oncoming vehicle that belonged to the Defendant. The suit against the Defendant was dismissed.
The Trial Magistrate found the 3rd Party liable and awarded general damages of Kshs. 450,000/= together with special damages of Kshs. 6,520/=with costs and interest. Interest on special damages to accrue from date of filing suit and general damages to accrue interest from date of judgement.
The Appellant being dissatisfied with the decision and orders of the trial court preferred an appeal before this court vide a Memorandum of Appeal dated 19th December 2023 on 30 grounds:
1. THAT the Learned Trial Magistrate erred in law and fact in making a finding on liability against the Appellant on the basis of failing to enjoin the purchaser of the motorcycle Reg. No. KMCE 493D as a third party to the suit even after acknowledging that the Appellant had sold the said motorcycle and it was in possession or control over the said motorcycle.
2. THAT the Learned Trial Magistrate erred in law and fact by failing to consider the provisions of law under Order 1 Rule 15 of the Civil Procedure Rules 2010(Revised 2020) with regards to enjoining Third Party.
3. THAT the Learned Trial Magistrate erred in law and fact by holding the Appellant liable for the accident and further by misdirecting herself on the legal principles of enjoining a Third Party to the suit. The Learned Trial Magistrate failed to appreciate that the Appellant had a choice under 2010 Rules (Revised in 2020)
4. THAT the Learned Trial Magistrate erred in law and fact by failing to appreciate that after the Appellant had sold the motorcycle it became a stranger to all the activities pertaining to the said motorcycle.
5. THAT the Learned Trial Magistrate erred in law and fact by failing to appreciate that there exists various forms of ownership i.e. beneficial, possessory, and legal owner who are not necessarily the registered owners.
6. THAT the Learned Trial Magistrate erred in law and fact by failing to appreciate the statutory requirements set down by NTSA for dealers to have motor vehicles and motorcycles to be registered in their names for purposes of sale and that the Appellant’s name appearing on the NTSA records as only an owner by presumption.
7. THAT the Learned Trial Magistrate erred in law and fact by finding the Appellant liable for the accident even after appreciating that the Appellant was not in control of the said motorcycle and the only connection the Appellant had with the said motorcycle was the fact that the said motorcycle was registered under the Appellant’s name.
8. THAT the Learned Trial Magistrate erred in law and fact by failing to appreciate that the motorcycle was not in possession and/or control of the Appellant and therefore it was the responsibility of the beneficial and actual owner to have the same registered in his name, which failure greatly prejudiced the Appellant and that the said motorcycle was illegally on the road.
9. THAT the Learned Trial Magistrate erred in law and fact by apportioning liability against the Appellant despite having admitted that the Appellant had sold the motorcycle and it was not in actual possession, control and use of the of the said motorcycle.
10. THAT the Learned Trial Magistrate erred in law and fact by failing to consider the issue of vicarious liability between the Appellant and the rider of the suit motorcycle without any evidence proving liability against the Appellant.
11. THAT the Learned Trial Magistrate failed to address the issue of vicarious liability which was one of the defenses of the Appellant.
12. THAT the Learned Trial Magistrate erred in law and fact in making a finding on liability against the Appellant despite there being no evidence or nexus to prove that there was an agent/servant and/or any employment relationship existing between the Appellant and the rider of the suit motorcycle at the time of the alleged accident.
13. THAT the Learned Trial Magistrate further erred in law and fact in making a finding on liability against the Appellant despite there being no evidence showing that the rider of the suit motorcycle was acting on behalf of the Appellant and/ or using the said motorcycle on the instructions of the Appellant at the material time of the accident.
14. THAT the Learned Trial Magistrate erred in law and fact in making a finding of liability against the Appellant despite there being no evidence showing that the rider of the motorcycle was in the course of lawful employment with the Appellant at the time of the accident.
15. THAT the Learned Trial Magistrate further erred in law and fact by making a finding on vicarious liability on the part of the Appellant as regards the rider in the suit when there was actually no evidence tendered by the 1st and 2nd Respondents whilst the Appellant presented the court with sufficient evidence that the rider was completely unknown to the Appellant.
16. THAT the Learned Trial Magistrate erred in law and fact in failing to address the issues of owner in possession and the owner enjoying the use and benefits from the use of the said motorcycle.
17. THAT the Learned Trial Magistrate erred in law and fact in entering 100% liability against the Appellant when no evidence was tabled to show that the Appellant was in control, had authority or derived any benefits from the use of the motorcycle which allegedly caused the accident.
18. THAT the Learned Adjudicator erred in law and fact in failing to appreciate and consider the evidence of the Appellant with regards to the sale of the motorcycle in issue prior to the date of the said accident,
19. THAT the Learned Trial Magistrate erred in law and fact by failing to appreciate that the Appellant had discharged the case against it, proving its burden to the standard required by law.
20. THAT the Learned Trial Magistrate erred in law and fact by failing to consider the evidence adduced by the Appellant to prove that it was neither the owner nor did it derive any benefit from the use of the suit motorcycle Reg. No. KMCE 495D having sold it prior to the date of the accident.
21. THAT the Learned Trial Magistrate erred in law and fact by failing to consider the position of law under the Evidence Act with regards to ownership.
22. THAT the Learned Trial Magistrate erred in law and fact by applying improper standard of proof whereas the Appellant had presented the trial court with sufficient proof to meet the legally required threshold on balance of probability.
23. THAT the Learned Trial Magistrate erred in law and fact by failing to consider the testimony of the Appellant’s witness which proved the Appellant’s non involvement with the subject matter of the suit and there was no relationship between the rider and the Appellant herein.
24. THAT the Learned Trial Magistrate erred in law and fact by finding that the Appellant was the owner of the motorcycle Reg. KMCE 495 D despite evidence to the contrary.
25. THAT the Learned Trial Magistrate erred in law and fact by failing to appreciate the principles of stare decisis to the holding in the Court of Appeal authorities on the issues before the court holding contrary to the holding of the learned magistrate.
26. THAT the Learned Trial Magistrate erred in law and fact by disregarding the documentary evidence adduced by the Appellant, which evidence was not countered or otherwise disproved by more compelling evidence by the 2nd Respondent.
27. THAT the Learned Trial Magistrate erred in law and fact by holding the Appellant liable for the accident and further by misdirecting herself on the legal principles in awarding damages therein that were excessive in the circumstances.
28. THAT the Learned Trial Magistrate erred in law and fact by failing to acknowledge that the suit motorcycle was not in possession or actual ownership of the Appellant at the time of the accident and consequently holding it liable for the negligence as alleged by the 2nd Respondent. 1st and 2nd Respondents as against the Appellant by failing to consider the evidence tendered by the said Respondent on behalf of the Appellant.
It is proposed to ask the court for ORDERS THAT: -
The Appel be allowed
The entire judgement made by the Trial Magistrate, be set aside and the suit be dismissed.
The costs of the appeal and in the subordinate court be granted to the Appellant.
The brief history of the claim was that PW1 Johnson Keragori Onditi while travelling as a pillion passenger on 3rd July 2020 along Nyanchwa-Suneka road was involved in RTA. He recorded his statement and adopted it as his evidence in chief. (Adopted)
After the accident he went to Kisii Teaching and Referral Hospital and allowed to go home. He produced clinic card P. E 1 and Treatment notes PMFI 2. He said that he also recorded a statement at Kisii Police Traffic Base police PMFI 3 and he was examined and medical report prepared by Mr. Nyameino PMFI 4(a) who issued a receipt P. E4(b). Police Abstract was prepared and issued PMFI 5. PW1 also identified and produced Demand Notice P.E 6
The injuries he sustained are particularized in his plaint and support documents. PW1 said he had not fully recovered and still had pain on his leg and stomach. He said he had never been compensated for the injuries he sustained. He prayed to be compensated
In cross examination by Opondo Advocate PW1 said that he was a pillion passenger and the bike was being ridden on the left side of the road while the vehicle was coming from the opposite side from Suneka as they were heading to Suneka. He said it was not true that the bike hit the vehicle’s mud guard. He said the vehicle came to their side. He said he suffered a fracture on one leg and it is not true that the treatment notes captured only bruises to the ankle. PW1 said he had not fully recovered but did not have recent prescriptions.
In cross-examination by Ondieki PW1 said that he was heading to Suneka from Nyanchwa and he was a pillion passenger on motorcycle KMCE 495D. He said he paid Kshs. 50. He said the bike was being ridden by its owner but he did not know his name. He said he reported that he had been hit by the motor cyclist and gave the registration number and he was issued with a police abstract for which he paid Kshs. 300. PW1 said that after the accident he did not get the bike at the station. He said the bike collided with motor vehicle KCE 078T as per the information in his statement. He said the bike was on the left lane while the vehicle was on the right coming from Suneka and they were moving on opposite directions. He said it was 5pm and it was not dark. PW1 said he saw the vehicle approaching before it hit them.
PW1 said that he did not know if the rider recorded a statement and he did not know the owner of the vehicle. He said it is Erick Ombati driver who was driving the vehicle. He said he sued the person who was driving the vehicle. He also said that Erick Ombati is the owner of the vehicle and he will produce the driver. PW1 said that he paid the rider Kshs. 50 as agreed. He said he had not seen the rider since the accident occurred as he relocated to Nakuru. He said he was injured on his right leg and stomach. That he suffered a fracture which was plastered and he left for home. PW1 blamed the owner of the vehicle for the accident.
In re-examination PW1 identified PMFI 2 treatment notes which indicated plaster was applied on his leg and medication given for the stomach. He said he had not fully recovered. He said the vehicle that hit them was from the opposite direction. It veered off its lane. The vehicle is KCW 087T. He said he still takes medication which he purchases over the counter when in pain.
PW2 Daniel Nyameino Senior Clinician working at Kisii Teaching and Referral Hospital produced the plaintiff’s P3 form, print out of treatment notes, clinic card and medical report dated 9.7.2020. He said he relied on treatment notes and X-ray films to prepare the report. He said the plaintiff was involved in road traffic accident on 3.7.2020 and sustained blunt abdominal trauma and contusion to right ankle joint. He was treated at Kisii Teaching and Referral Hospital on 3.7.2020 injuries as per plaint.
A reduction of the dislocation was done and application of POP. Right lower limb had a POP. He sustained right tibia/fibula fracture, right ankle joint dislocation and soft tissue injuries. He produced Medical Report as exhibit P.E 4(a) and the P 3 as Ex P3. The injuries were approximately 4 – 5 days old.
He also produced the clinic appointment card and print out from Kisii Teaching and Referral Hospital of treatment notes P. E 1 and P. E 2
In cross-examination by Opondo PW2 said the injuries were likely to heal but the fracture was still in the process of healing. He said he had not seen the patient again so he could not confirm if they have healed or not.
PW3 No. 88300 PC Moses Kasera attached to Kisii police station and performing traffic duties. Testified that the plaintiff was involved in road traffic accident on 3.7.2020 at about 1730hours at Getembe primary school. Brief circumstances are that the motor cycle was being ridden by Henry Otsotsi while trailing a motor vehicle which slowed due to road patches but the rider did not slow. Instead, he made an effort to overtake the vehicle. He veered to the right and collided with oncoming vehicle KCW 078T which was headed in the opposite direction. The collision was on the rear mud guard on the right rear wheel.
The plaintiff was a pillion passenger and was injured. He was rushed to Kisii Teaching and Referral Hospital and later came for the abstract. PW3 was the investigating officer. They reported parties to the insurance and the matter was pending under investigations. He produced the abstract as exhibit PMFI 1 PE 5.
In cross-examination by Opondo PW3 said that the motor cyclist ought to have kept distance. It collided with the vehicle. The motor cyclist did not slow down.
In cross-examination by Ondieki PW3 said he investigated the matter together with PC Gichuki as the leading investigating officer. The accident was on 3.7.2020. The motor cycle was KMCE 495D. He said the motor cycle was trailing an unknown vehicle and the accident occurred when the unknown motor vehicle was being overtaken by the motor cycle. Nobody had a right of passage. The motor cycle was overtaking. The road is marked. PW3 said that he took measurements of the road and established that the cause of the accident was overtaking. He said they did not finalize investigations as they did not find an independent eye witness. The matter was not referred to court and nobody was charged. The matter is pending under investigations. This matter is now in court on a civil claim for further determination. He said it is Henry Otsotsi who was riding the motor cycle. That when they visited the scene and he was there and they captured the name before he was rushed to hospital. He said the rider recorded a statement but he did not have the file with him. He said he could not recall if the rider was the owner of the bike or was in control but he knew that he was the rider. He said he was not aware of any case between Henry Nyakina and Erick Ombati. He said the name in the abstract is for the policy holder of the vehicle and the matter was still pending under investigations. He said he had nothing to say about the plaintiff paying Kshs. 50 but he knew he was a pillion passenger. Both the rider and the plaintiff were parties in this accident. He said he did not get an independent witness. The accident occurred at about 5.30pm on 3.7.2020. He said he visited the scene immediately after the accident and there were pedestrians but none was willing to record a statement. He said the motor cycle was TVS star but he did not have the police file so he did not know who owned the bike. He could not recall if he required Henry Otsotsi to produce his licence or if he needed him to avail proof of being employed by car and general.
DW1 Eric Ombati a Legal Officer testified that on 3.7.2020 an accident occurred between his lorry and motor cycle. He relied on his statement as evidence in chief (Adopted)
In cross-examination by Nyangosi he said that KCW 078 T was his vehicle and it was involved in an accident with motor cycle. His said his vehicle was inspected but he forgot to file the inspection report. He said his vehicle was insured by APA (comprehensive). He said he does not know if Johnson Keragori was injured and who he was on the motor bike.
In cross-examination by Ondieki DW1 said that the vehicle was KCW 078T and the accident was on 3.7.2020. He said his driver was Marwa Moire Joshua. He said he was not the one driving and he did not witness the accident. He said that what he recorded in his statement is what the police told him. He said that the driver passed on during the COVID 19 but did not record any statement with the police. He said he was not aware his vehicle was blamed for the accident. He said if there is proof that his vehicle was found to be unroadworthy then he will accept. The turn boy did not record a statement because he did not find it in the report. He said he did not know why the turn boy did not record a statement. He could not tell who was riding the motor cycle.
This appeal was canvassed by way of written submissions.
The Appellant’s submissions are dated 4th December 2024 consolidated the 31 grounds of appeal and raised the following issues for determination
1. Whether the trial Magistrate erred in finding the Appellant/ Third Party as the owner of the motorcycle registration number KMCE 495D?
2. Whether the trial Magistrate erred in finding the Appellant/ Third Party liable for the accident?
3. Whether the trial Magistrate erred in finding the Appellant/Third Party liable for failing to take-out Third-Party proceedings?
4. Whether the trial magistrate erred by not appreciating the evidence adduced when rendering the judgement?
5. Costs
On whether the trial magistrate erred in finding the appellant/ third party as the owner of the motorcycle registration number KMCE 495D) the Appellant’s Counsel submitted that from the documents tendered in court, the 2nd Respondent/Defendant instituted the claim against the Appellant/Third Party presumably due to the names of the Appellant/Third Party appearing in the motor vehicle search records by the National Transport and Safety Authority as the registered owner of the suit motorcycle and which outcome is the only reason 2nd Respondent/Defendant enjoined the Appellant/Third Party as a Third Party to the suit.
It was submitted that The National Transport and Safety Authority (NTSA) is a state agency established by an Act of Parliament in 2012 as the lead agency in road safety issues in Kenya and in charge of registration of all motor vehicles and motor cycles. In its notice dated 7th September 2020, the agency emphasized that registration of any unit will be as per customs entry. Therefore, the dealer or the importer should apply for the registration under their names and KRA PIN as per declaration of the Customs entry.
It was further submitted that The Appellant/Third Party's witness in his evidence testified that the Appellant/Third Party is in business of sale of motorcycles and three wheeler motor vehicles and it is a requirement for all dealers to have the motorcycles and motor vehicles they import being registered in their respective names and it was for that reason the Appellant/Third Party registered the suit motorcycle in its name and that the said motorcycle was sold and effected transfer and the same was released to the purchaser immediately upon purchase prior to the date of the alleged accident and that the Appellant/Third Party was not in any way in control or have any authority or derive any benefit from the use of the said motorcycle after the date of sale.
The Appellant submitted that trial Magistrate misdirected herself in finding the Appellant/Third Party liable for the accident the Appellant/Third Party having had sold the said motorcycle and that it was a statutory requirement to have the Appellant/Third Party register the said motorcycle in its name. The Appellant relied on the case of Toroitich v Kihe & another (Civil Appeal E124 of 2023) [2024] KEHC 251 (KLR) (24 January 2024) (Judgment) Justice R. N Nyakundi held that;
“41.0n this Limb, I agree with the respondent's submissions. The 2nd Respondent argued that it is a statutory requirement for all dealers and importers of motor vehicles and motorcycles to have the motor vehicles and motorcycles registered in the name of dealers and importers as per the declaration of the customs Entries.
42. The Respondent went a step further to reproduce the contents of a notice dated 07.09.2020 which states;
That registration of any unit will be as per customs entry. Therefore, the dealer or the importer should apply for the registration under their names and KRA PIN as per declaration of the Custom 's Entry.
44.1 could not agree more. I am satisfied that the said motor vehicle was sold to Meena Collections. The third party's witness evidence established that the third party is in the business of sale of motorcycles and as such it is required to have motorcycles and motor vehicles registered in their name but many at times they might not be the beneficial owners as is in this case.”
It was submitted that the police abstract dated 06/07/2020 produced in court does not indicate the details of the motorcycle registration number KMCE 495D or that the said motorcycle is owned and/or insured by the Appellant/ Third Party. That if the Appellant/ Third Party was the owner and/or insured of the said motorcycle; nothing would have been easier than the police to indicate as such in the police abstract.
The Appellant also relied on the case of Muhambi Koja v Said Mbwana Abdi 12015] eKLR where it was held thus:
"In a nutshell, a police abstract report or any other form of evidence will be proof of ownership of a vehicle and will displace the registration (log) book if it is demonstrated that the person named in the registration (log) book has since transferred and divested himself of its ownership to the person named in the abstract report or in that other form of evidence. "
In the authority of Abson Motors Limited v Tabitha Syombua Mutua & another 20191 eKLR it was held that;
"It was not proved to be the insured owner either. Normally, after an accident the insured owner's name appears on the police abstract and in this case the appellant's name did not appear on that police abstract produced in evidence... " Further, Appellant/ Third Party neither had control over the said motorcycle nor did it derive any benefits from its use. TPW during the hearing averred that Appellant/ Third Party does not own motorcycles for its own use and does not carry out boda boda business. The suit motorcycle is said to have been a boda boda and is said to have been ferrying the Plaintiff which activity is outside the scope of Appellant/ Third Party's business. The trial Magistrate in her judgement appreciated that the Appellant/ Third Party was not in control of the suit motorcycle at the time of the accident when she held that; "Whereas it is a fact that he Third Party was not in control of the accident motorcycle, it: still is the registered owner and the only connection to the motorcycle "
It was the Appellant's submissions that it was only a paper owner of the suit motorcycle and should not be held liable for the accident as it was not in possession and/or control of the said motorcycle at the time of the accident.
In the case of Securicor Kenya Limited v Ryumba Holdings Limited (2005) eKLR it was held that;
“In the case before us, it was proved that at the time of the accident the appellant was no longer the owner of KWJ 816. It had sold it to G.M. THANGWAA to whom possession had transferred. It appears that Mr. Karume had not been put into possession of it by the appellant. Moreover, KWJ 816 was not being driven by the appellant's driver or its employee on an occasion in which the appellant had any interest, matatu business not being its concern. There was no relationship whatsoever between the appellant and 2nd defendant. Indeed, there was no agency relationship. It is difficult to see thereof how the trial judge could import into the case the doctrine of vicarious liability. It was simply not applicable...Moreover, which we do not consider to be the position, the appellant was still owner by way of log book being in its name, such ownership is not sufficient to create vicarious liability for the negligence of everyone who happened to drive it . . . . . . 3'. In the appeal case of Gichira Peter-v- Lucy Wambura Ngaku & Another (2021) eKLR;
"Section 8 of the Traffic Act (Cap 403 of the Laws of Kenya) provide that;
“The person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle.”
The Appellant submitted further that Section 8 of the Traffic Act provides the general rule with regard to ownership of the motor vehicle but there may he circumstances where this may vary. Registration of a person is a prima facie evidence of ownership bur the contrary may be proved.
It was also submitted that the I St Respondent produced P. Exhibit 4 a copy of Records from the Registrar of motor vehicles which did indicate that the Appellant was the registered owner of the motor vehicle. However, the Appellant denied ownership of the motorcycle at the time of the accident and contends that he had sold it to the 2nd Respondent vide sale agreement dated 16/07/2008. The Appellant contended that on the same date 16/07/2008, the Respondent took possession of the motor vehicle thereby taking over all operations of the motor vehicle.
It was contended that motor vehicles change hands but the records are not amended to reflect the change immediately because there is usually a time lag between the sale and transfer of the motor vehicle and the registration of the motor vehicle. The section appreciates that the contrary may he proved and determined on the registration does not always reflect that fact.
It was further submitted that Section 8 of the Traffic Act contemplates that there may be actual, possessory or beneficial ownership of a motor vehicle which can exist independent of registration. That the fact of registration of a person as owner will not be taken as conclusive evidence of ownership as there are other alternative forms of ownership like actual ownership, beneficial owner and possessory ownership and where it is proved with other material evidence that the person registered was not the owner, that the other person will be deemed to be the owner.
That in this case the police abstract gave the name of the owner of the said motor vehicle as Regan Muchoki Kariuki who is the second Respondent? and from the material which was placed before the trial magistrate, there was no doubt that the Appellant only owned the motor vehicle on paper whereas the Respondent was the beneficial owner of the accident motor vehicle who was in possession at the time of the accident having bought it from the Appellant. The fact that the 2nd Respondent had insured the motor vehicle is conclusive evidence that he was in possession and was beneficially entitled to it.
The Appellant faulted the learned magistrate erred in holding that the Appellant was the owner of the vehicle and therefore failed to appreciate that though the Appellant was the owner on papers from the Registrar's Office, the contrary was proved with the evidence presented before the court that the Respondent was the beneficial owner of the vehicle at the time of the accident; the driver of the vehicle at the time of the accident was an agent and or servant of the 2nd Re
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