Introduction
1. Car & General (Trading) Limited, the Appellant herein, was the 2nd Defendant in Vihiga Chief Magistrate’s Civil Suit No. E057 of 2022. By a judgment delivered on 21st January 2025, Hon. J. A. Agonda (PM) found the Defendants jointly and severally liable at 100% for a road traffic accident that occurred on 7th February 2022 and awarded the Plaintiff, now the 1st Respondent/Plaintiff, general damages of Kshs. 130,000/= together with the costs of the suit and interest thereon at Court rates from the date of judgment until payment in full.
2. Being dissatisfied with that decision, the Appellant preferred this appeal by a Memorandum of Appeal dated 12th February 2025, in which it set out thirty-one (31) grounds of appeal. The appeal is directed at both the finding on liability and, in the alternative, at the quantum of the award.
3. The 1st Respondent/Plaintiff, Alfred Lihanda Ominde, was the Plaintiff in the subordinate Court. The 2nd Respondent/Plaintiff, Robert Amwai Okillo, was the 1st Defendant. He neither entered appearance nor filed a defence;
an interlocutory judgment was entered against him on 27th October 2022. He has likewise not participated in this appeal, although he was duly served with the Record of Appeal.
The case before the Trial Court
(a) The pleadings
4. By a Plaint dated 16th March 2022 and filed on 18th March 2022, the 1st Respondent/Plaintiff sued both Defendants in negligence. At paragraph 4 of the Plaint he pleaded, in terms, that:
“At all material times to this suit, the 1st Defendant is the actual owner of motor bike registration number KMFY 220R while the 2nd Defendant is the registered owner of motor bike registration number KMFY 220R.”
5. At paragraph 5 he pleaded that on or about 7th February 2022 he was riding motor cycle registration number KMFX 758F along the Chugi – Muhudu marram road when motor cycle registration number KMFY 220R was so negligently, carelessly and/or recklessly ridden by “the Defendant, his rider, servant and/or agent” that it lost control and hit his machine, occasioning him bodily injury. He particularized the negligence complained of and pleaded two injuries, namely (a) tenderness along the left hand, and (b) a tender swollen right ankle joint. He prayed for general damages, costs and interest. No special damages were pleaded.
6. The Appellant entered appearance and filed a Statement of Defence dated 18th August 2022 in which it denied the claim in its entirety. Of present importance, at paragraphs 7 and 8 of that Defence the Appellant pleaded, in the alternative and without prejudice, that it is in the business of wholesale importation and distribution of motor cycles and three-wheeler motor vehicles; that if its name appeared as owner of motor cycle registration number KMFY 220R (which it denied), that was purely in compliance with the regulatory requirements of the National Transport and Safety Authority; and, critically, that it had sold the suit motor cycle to Robin Afric Limited on 11th January 2022, a date prior to the date of the alleged accident. The 1st Respondent/Plaintiff did not file a reply to that Defence.
(b) The evidence
7. The 1st Respondent/Plaintiff at the Trial Court called three witnesses. PC Damaris Mutunga, a Traffic Police Officer at Vihiga Police Station, produced the police abstract. It was her evidence that on 7th February 2022 motorcycle registration number KMFY 220R lost control, left its lane and hit motor cycle registration number KMFX 758F head-on, both automobiles sustaining frontal damage; that both were insured; and that the matter was under investigation by PC Koech. On cross-examination she testified that the initial report showed that KMFY 220R was ridden by one John Alta; that paragraph 1(a) of the police abstract named Robert Amwai Okillo as the owner of the machine; that upon interviewing the rider he stated that his employer was Robert Amwai; that Robert Amwai confirmed to the police that he was the person who had given the motor cycle to John Alta to ride; that Robert Amwai held possession while actual ownership and control of the automobile; and that the automobile was released to him as owner. On re-examination she confirmed that the registered owner according to the search was Car & General (Trading) Limited and that she blamed the rider of KMFY 220R for failing to keep his lane.
8. The Clinical Officer, Obadiah Ndege of Vihiga County Referral Hospital, produced the P3 form dated 9th February 2022, the treatment notes and the receipt. He classified the degree of injury as “harm” and confirmed that the 1st Respondent/Plaintiff was treated as an outpatient.
9. The 1st Respondent/Plaintiff testified in person. He is a bodaboda rider. He adopted his witness statement and produced his documents, including a copy of records from the Registrar of Motor Vehicles showing the Appellant as the registered owner. On cross-examination he was emphatic that the owner of KMFY 220R was Robert Amwai Okillo; that the said owner had personally told him so; and that the automobile was being used in bodaboda business and was at the material time transporting alcohol. He confirmed that he had never spoken to “Brian”, the other name appearing on the abstract.
10. For the defence, Joseph Mulwa Mwambi, the Appellant’s Logistics Coordinator in charge of motor cycles and three-wheeler motor vehicles (Staff Number 4191), adopted his statement dated 22nd August 2022 and produced three exhibits: DExh.1, a paid-up Tax Invoice/Delivery Note No. DIST350013040 dated 11th January 2022 in favour of Robin Afric Limited; DExh.2, the Appellant’s list of employees as at 28th February 2022; and DExh.3, a circular from the National Transport and Safety Authority (NTSA/DRL/REG.VOL.1) dated 7th September 2020. His evidence was that the Appellant does not own motor cycles for its own use or for commercial purposes; that it had sold the suit motor cycle to Robin Afric Limited on 11th January 2022, which took possession immediately upon purchase; that any registration of the automobile in the Appellant’s name was made purely to comply with the statutory requirements placed on importers and dealers by the NTSA; that neither the rider nor the 1st Defendant was its employee; and that the Appellant does not insure motor cycles that it sells.
THE JUDGMENT APPEALED FROM
11. The learned trial Magistrate framed five issues and resolved them as follows. On ownership, she held that the Appellant was the registered owner as at 7th February 2022, relying on the copy of records from the Registrar of Motor Vehicles, and added that this evidence “was fortified by Pw2 who produced the police abstract indicating the 2nd Defendant as registered owner.” She found, secondly, that the accident had indeed occurred as alleged.
12. On blameworthiness, the learned Magistrate preferred the 1st Respondent/Plaintiff’s version. She reasoned that the Appellant, liability being hotly contested, ought to have produced a comprehensive motor vehicle inspection report and called the motor vehicle inspector and the 1st Defendant; that DW1’s evidence went only to ownership and would have required corroboration by eye witnesses whom the Appellant did not call; that by dint of Order 2 Rule 6 of the Civil Procedure Rules she had “no option but to reject DW1’s version”; and that the Appellant’s failure to call eye witnesses attracted an unfavourable presumption under Section 119 of the Evidence Act. She then held that “The 1st Defendant who was the employee of 2nd Defendant ought to have been watchful of other road users” and concluded that “the 2nd Defendant was vicariously liable for his rider’s negligent act and having employed careless and unskilled driver.” She entered liability at 100% against the Defendants jointly and severally.
13. On quantum, and after considering George Mugo & Another v A.K.M (minor suing through next friend and mother of A.N.K) [2018] eKLR, George Kinyanjui t/a Climax Coaches & Another v Hussein Mahad Kuyala [2016] eKLR and Ndungu Dennis v Ann Wangari Ndirangu & Another [2018] eKLR, she awarded Kshs. 130,000/= as general damages for pain and suffering, declined to award special damages (none having been pleaded), and awarded costs and interest.
The appeal and the submissions
14. The thirty-one grounds in the Memorandum of Appeal are prolix and substantially repetitive. Reduced to their essentials, they raise five complaints: (i) that the trial Court erred in finding the Appellant to be the owner of motor cycle registration number KMFY 220R and in failing to appreciate the distinction between registered, beneficial and possessory ownership (grounds 1, 3, 5, 7, 8, 9, 18, 19, 25, 26, 28 and 30); (ii) that it erred in finding the Appellant vicariously liable in the absence of any evidence of an employment or agency relationship between the Appellant and the rider (grounds 11 to 17 and 24); (iii) that it misapplied the burden and standard of proof and disregarded uncontroverted documentary evidence (grounds 2, 4, 6, 20, 21, 22, 23 and 31); (iv) that it failed to follow binding authority (ground 27); and (v) that the award of damages was excessive in the circumstances (ground 29).
15. The appeal was canvassed by way of written submissions clustered in the following thematic areas: whether the trial Magistrate erred in finding the Appellant/2nd Defendant as the owner of the motorcycle registration No. KMFY 220R, whether the Appellant enjoyed any categories of ownership of
the motorcycle registration no. KMFY 220R after sale, whether the trial Magistrate erred in finding the Appellant/2nd Defendant vicariously liable for the accident, whether the trial Magistrate erred by not appreciating the evidence adduced when rendering the judgment, burden and standard of proof, and who should bear the costs. In buttressing the appeal grounded on this issues learned Counsel for the Appellant placed reliance on the principles elucidated in the following case law: Toroitich v Kibe & Another CA E124 of 2023 [2024] KEHC 251 KLR, Muhambi Koja v Said Mbwana Abdi [2015] eKLR, Abson Motors Ltd v Tabitha Syombua Mutua & Anther [2019] eKLR, Car & General Trading Ltd v Owino & Another [2023] KEHC 19397 KLR, Gichira Peter v Lucy Wambura Ngaku & Another (2021) eKLR, Jared Magwaro Bundi & Another v Primarosa Flowers Ltd [2018] eKLR, Securicor Kenya Ltd v Kyumba Holdings Ltd (2005) eKLR, Mohamed Guyo Boru v Richard Mwilaria Aritho [2022]eKLR, Nancy Ayemba Ngaira vs Abdi (2010) eKLR, Samuel Mukunya Kamunge v John Mwangi Kamuru in CA No. 34 of 2002, Wellington Nganga Muthiora vs Akamba Public Road & Another CA [2010] eKLR, General Motors East Africa Ltd v Eunice Alila Ndeswa & Another (2015) eKLR, Lion of Kenya Insurance Co. Ltd v Edwin Kibuba Kihonge[2018] eKLR, Statpack Industries Ltd vs James Mbithi (2005) eKLR, Christine Kalama v Jane Wanja Njeru & Another [2021] eKLR, John Nderi Wamugi vs Rubesh Okumu Otiagala & 2 Others Kisumu CA 24 of 2015, M.O.M Amin Transporters Ltd Mariam Amin Bahi v Alexander Ndung’u Mbugua & 2 Others [2019] eKLR, Morgan v Launchbury & Another 1972 2 ALL ER 606, Joseph Wabukjo Mbayi v Frida Onyango (2019) eKLR, Kiema Mutuku v Kenya Cargo Holdings Hauling Services Ltd (1991) 2KAR 258, Dharmagma Patel & Another v T A (a minor suing trhough the mother and next friend HH) [2014] eKLR, M’Bita Ntiro v Mbae Mwirichia & Another [2018] eKLR, Ahmed Mohammed Noor vs Abdi Aziz Osman (2019) eKLR, Alice Wanjiru Ruhiu v Messiac Assembly of Yahweh [2021] eKLR, Car and General Trading Ltd v Nyagaka & Another [2025] KEHC 1960 KLR, Cecilia
Karuru Ngayu v Barclays Bank of Kenya (2016) eKLR. All what the Learned Counsel invited the Court to appreciate in reference to the principles illuminated in the above cases is that the Appellant was wrongly sued in the Lower Court and further dragged to the High Court in a civil dispute which there are no justiciable issues to warrant any Court or independent Tribunal to make a finding on liability in any judgment as known in law. It was also the contention of learned Counsel that the Learned Magistrate failed to appreciate and internalize the doctrine of vicarious liability which flow from an employee/employer contractual relationship. He therefore prayed for the appeal to be allowed in so far as the connecting factors of liability are concerned in the civil claim filed by the Plaintiff Alfred Lihanda Ominde.
16. The Appellant’s essential contention is that the presumption of ownership created by Section 8 of the Traffic Act, Cap 403, is rebuttable; that it discharged the burden of rebutting it by producing a fully paid-up tax invoice and delivery note evidencing an absolute cash sale of the automobile to Robin Afric Limited on 11th January 2022, some four weeks before the accident, together with an NTSA circular explaining why the automobile stood registered in a dealer’s name; and that in the absence of any nexus between it and the rider of the machine, no vicarious liability could attach to it.
17. The 1st Respondent/Plaintiff, by submissions dated 16th April 2026 filed by Learned Counsel Ngala Awino, framed a single issue, namely whether the learned trial Magistrate erred in entering judgment in his favour. He submits that the Police Officer confirmed on cross-examination that the search revealed the automobile to be registered in the Appellant’s name; that DW1 conceded that the Appellant never initiated the transfer of the automobile and never applied to be struck out of the suit; that the Appellant never called the police to rebut his case; and that the trial Court properly evaluated the pleadings, the evidence and the submissions of both parties. He relies on Baro Ngo Sevelius Yophen v Jared Ndemo [2020] eKLR and urges that the appeal be dismissed with costs.
18. The 2nd Respondent/Plaintiff, against whom an interlocutory judgment had been entered in the trial Court, filed no submissions and made no appearance.
The duty of this Court as a First Appellate Court
19. This being a first appeal, my mandate is settled. In Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123 the Court of Appeal for East Africa stated that a first appeal is by way of retrial and that the first appellate Court is under a duty to reconsider and re-evaluate the evidence on record, weigh conflicting evidence and draw its own conclusions, bearing always in mind that it has neither seen nor heard the witnesses and must make due allowance in that respect. The same principle was restated in Kiruga v Kiruga & Another [1988] KLR 348.
20. That deference is not, however, unlimited. As was held in Peters v Sunday Post Ltd [1958] EA 424 and in Ephantus Mwangi v Duncan Mwangi
Wambugu [1982–1988] 1 KAR 278, an appellate Court will interfere with findings of fact where it is shown that the trial Court failed to take account of particular circumstances or probabilities, or misapprehended the evidence, or acted on a wrong principle, or where the impugned finding is one which no reasonable tribunal, properly directing itself on the evidence, could have reached. I approach the record with those principles firmly in mind.
Issues for determination
21. Having considered the Record of Appeal, the Supplementary Record of Appeal, the grounds of appeal and the submissions of Counsel, the issues that fall for my determination are these:
i. Whether an accident occurred on 7th February 2022 involving motor cycles registration numbers KMFY 220R and KMFX 758F, and whether it was occasioned by the negligence of the rider of KMFY
220R; ii. Whether the Appellant was the owner of motor cycle registration number KMFY 220R at the material time;
iii. Whether, on the evidence on record, the Appellant was vicariously liable for the negligence of the rider of that machine;
iv. Whether the learned trial Magistrate properly drew an adverse inference against the Appellant under Section 119 of the Evidence Act and properly invoked Order 2 rule 6 of the Civil Procedure Rules;
v. Whether the award of Kshs. 130,000/= in general damages warrants interference; and
vi. Who should bear the costs of this appeal and of the suit in the Subordinate Court.
Analysis and determination
(i) The occurrence of the accident and the negligence of the rider of KMFY 220R
22. The tort of negligence in road traffic accidents is proven by establishing that out of the two or more parties on the highway or any motorable roads either one of them breached the duty of care and as a result of which it led to loss, injury or damage to the Claimant/Plaintiff that was foreseeable. This is the position taken by the persuasive authority of Ng Chun Pui and Ng Wang King v Lee Chuen Tat et al [198] UK PC 7 reminds us of the burden and standard of proof in a negligence matter. He stated at pages 3 and 4 of his judgment that:
“The burden of proving negligence rests throughout the case on the Plaintiff. Where the Plaintiff has suffered injuries as a result of an accident which ought not to have happened if the Defendant had taken due care, it will often be possible for the Plaintiff to discharge the burden of proof by inviting the Court to draw the inference that on the balance of probabilities the Defendant must have failed to exercise due care, even though the Plaintiff does not know in what particular respects the failure occurred…… it is the duty of the judge to examine all the evidence at the end of the case and decide whether on the facts he finds to have been proved and on the inferences he is prepared to draw he is satisfied that negligence has been established.”
23. The key principles on two vehicles collision which must be tested evidentially by the trial Court:
• No Automatic Presumption: The mere fact that a head-on or rear-end collision occurred between two vehicles does not mean both drivers are equally to blame.
• Standard of Proof under Section 107(1) of the Evidnec Act: In Road Traffic Accident cases Claims Tribunal negligence is judged on preponderance of probability, not proof beyond reasonable doubt.
• Specific Attribution: Contributory or composite negligence requires direct evidence showing a specific act or omission (such as excessive speed, wrong side driving, or lack of lights on a parked vehicle) that materially contributed to the accident.
• Duty of Care: The legal obligation to avoid actions or omissions that could foreseeably harm other road users.
• Breach of Duty: The failure to act like a reasonably prudent driver under similar circumstances.
• Causation: A direct link showing that the Defendant’s breach was the proximate cause of the accident.
• Damages: Proof of actual physical, financial, or property damage resulting from the crash
24. A Trial Court is always faced with the issue of dealing with the challenge on the ground of contributory negligence to be attributed to the victim in a road traffic accident claim. There is therefore the question of proximate cause on causation issues with regard to the breach of the duty of care. In exercising judicial discretion, the core elements of negligence in road traffic accidents must be factored in making a finding on liability. This is the position the Courts have taken in Kenya in reaffirming the jurisprudence on the elements of negligence:
• Mutunga v Mukadili (Civil Appeal E104 of 2024): The High Court reestablished that the complete burden of proof lies on the Plaintiff to distinctly establish duty, breach, causation, and injury. The Court emphasized that judges must evaluate the specific credibility of testimonies and the cogency of the facts rather than relying blindly on general accident occurrences
• Minor & another v Kurui (Civil Appeal E011 of 2023): Citing the foundational common law doctrine from Donoghue v Stevenson, the High Court ruled that a claimant cannot succeed in an active road traffic claim without proving that a duty of care was owed, that it was breached, and that the loss directly flowed from that breach. Notably, the Court clarified that medical records do not necessarily require rigid documentary treatment notes if oral evidence establishes a cohesive timeline of injury.
• Orioki v Kevian Kenya Limited (Civil Appeal 341 of 2019): This case dealt heavily with the standard of care regarding following distance. The Court confirmed that under the traffic rules of Kenya, drivers have an implicit duty of care to maintain a safe stopping distance. Failing to do so constitutes a direct breach, making the rear-ending driver wholly liable for the proximate cause of the collision.
• Mwaka v Karua & another (Civil Case E261 of 2022): The Court cited Telkom Kenya Limited & 2 others v. to rule that every driver is under a common law obligation to exercise a high degree of caution toward passengers and other road users. Crucially, the judgment underscored that a Police Abstract is only proof that an accident was reported, not proof of negligence itself. The Plaintiff must adduce independent evidence describing how the driver’s negligence triggered the event.
• Muchemi v Mbugua & Another (2009 eKLR): The High Court found the Defendant 100% liable for negligence because he breached his duty of care by driving on the wrong side of the road, leading directly to a headon collision with the Plaintiff’s vehicle.
25. This appeal will be tested within these parameters of the law to establish whether the Trial Court was able to determine liability within the laid down principles. On this issue the evidence was, in truth, all one way. The 1st Respondent/Plaintiff testified that he was lawfully riding motor cycle registration number KMFX 758F from Chugi when motor cycle registration number KMFY 220R, coming from the direction of Mulundu, lost control at a corner, crossed into his lane and collided with him head-on. The
Investigating Officer confirmed the frontal damage to both machines, consistent with a head-on collision, and confirmed that KMFY 220R had left its lane. The police abstract, produced without objection, records an accident on that date, at that place, involving those two machines.
26. A rider who permits his automobile to leave its own carriageway and to cross into the path of oncoming traffic is, in the absence of any explanation, negligent. No explanation was offered. Neither the rider nor the 2nd Respondent/Plaintiff gave evidence, and the Appellant – whose case was not that the accident happened differently but that it had nothing whatever to do with the automobile – offered none. The particulars of contributory negligence pleaded in the Defence were wholly unsupported by evidence and were, in substance, abandoned. On my own independent re-evaluation of the evidence I am satisfied, on a balance of probabilities, that the accident occurred as alleged and that it was occasioned wholly by the negligence of the rider of motor cycle registration number KMFY 220R. To that extent the finding of the trial Court that liability lies at 100% is unassailable, and I affirm it.
27. I should note, in passing, that the opening paragraph of the impugned judgment describes the 1st Respondent/Plaintiff as a “pillion passenger onboard the Defendant’s motor vehicle registration number KMFX 758F.” That is inaccurate: KMFX 758F was the 1st Respondent/Plaintiff’s own automobile and he was its rider, carrying a pillion passenger of his own. The error is, however, immaterial to the outcome, since on either footing he was a lawful road user against whom no blame was established.
(ii) Was the Appellant the owner of motor cycle registration number KMFY 220R?
28. This is the pivot on which the appeal turns. Section 8 of the Traffic Act, Cap 403, Laws of Kenya 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.”
29. The words “unless the contrary is proved” are the whole point. Section 8 creates a presumption, not a rule of title, and the presumption is rebuttable. In Osapil v Kaddy [2000] 1 EA 187 the Court of Appeal of Uganda held that a registration card or logbook is only prima facie evidence of title to a motor vehicle. In Nancy Ayemba Ngaira v Ali Abdi [2010] eKLR, Ojwang J (as he then was) observed that the indication on a certificate of search is not final proof that the sole owner is the person whose name is shown, and that judicial practice has developed the concepts of actual ownership, beneficial ownership and possessory ownership, any of which may, for practical purposes, be far more relevant than the name on the register. In Ramesh V. Hiran v Justus Murianki & Another [2017] eKLR, Gikonyo J held that registration in the register of motor vehicles is prima facie proof of ownership but may be rebutted by evidence; and in Samuel Mukunya Kamunge v John Mwangi Kamuru [2005] eKLR, Okwengu J (as she then was) recognised that vehicles often change hands without the records being amended, so that a certificate of search is not conclusive proof of actual ownership. The same approach was taken by Aburili J in
Car & General Trading Limited v Owino & Another (Civil Appeal No. E098 of 2021).
30. The 1st Respondent/Plaintiff discharged his initial evidential burden by producing the NTSA copy of records, which shows the Appellant as the registered owner as at 10th March 2022. The presumption thereupon arose, and with it the evidential burden shifted to the Appellant under Section 109 of the Evidence Act to prove the contrary. The question is whether it did so.
31. In my judgment it did, and by a considerable margin. The Appellant produced DExh.1, a Tax Invoice/Delivery Note No. DIST350013040 issued by its Nakuru Distribution Branch, dated 11th January 2022, in favour of Robin Afric Limited. That document is not a bare assertion. It particularizes each automobile sold by chassis number, engine number and registration number. Among the units listed is a TVS Star HLX 150 bearing chassis number MD625AE32M1F03611, engine number BE3FM1803371 and registration number KMFY220R. Those three particulars correspond precisely, digit for digit, with the particulars appearing on the NTSA copy of records produced by the 1st
Respondent/Plaintiff himself. The document bears the stamp and signature of the purchaser, Robin Afric Limited, dated 12th January 2022, acknowledging receipt, and it is expressed to be fully paid, the total consideration for the consignment being KES 4,019,672. The accident occurred on 7th February 2022 – some four weeks after that sale and delivery.
32. The Appellant went further and explained why its name appeared on the register at all. DExh.3 is a circular from the National Transport and Safety Authority dated 7th September 2020 addressed to all motor vehicle and motor cycle dealers, which directs that registration of any unit shall be as per the customs entry, and that “the dealer or the importer should apply for registration under their names and KRA PIN as per the declaration of the Custom’s Entries”, failing which any application at variance with that requirement would be rejected with effect from 9th September 2020. That explanation is corroborated on the face of the very search relied upon by the 1st Respondent/Plaintiff: it records a Customs Entry Number (2021NKU145689), a date of registration of 7th December 2021, and the condition of the automobile as “New”. Those are the hallmarks of a dealer’s importation registration, not of a user’s registration.
33. Finally, the Appellant produced DExh.2, its list of employees as at 28th February 2022, running to some 565 names. Neither John Alta, the rider, nor Robert Amwai Okillo, the 2nd Respondent/Plaintiff, appears anywhere upon it.
34. None of this evidence was met by evidence in rebuttal. The 1st Respondent/Plaintiff filed no reply to the Defence. He raised no objection when DExh.1 was produced. He led no evidence impugning its authenticity. The whole of the cross-examination on the point went to a single, and quite different, proposition – that the Appellant had not completed the transfer of the automobile at the NTSA. That, with respect, does not answer the case. Failure to procure the amendment of a public register is a regulatory omission; it does not undo a concluded contract of sale under which property and possession have passed for full value. As the authorities cited above make plain, the very mischief which Section 8 accommodates is that machines change hands while the records lag behind. Uncontroverted documentary evidence of an antecedent sale is precisely the sort of “credible and cogent evidence” which rebuts the statutory presumption.
35. There is, however, a further and to my mind conclusive consideration, and it is one which appears not to have been drawn to the attention of the learned trial Magistrate. The 1st Respondent/Plaintiff’s own Plaint, at paragraph 4, pleaded in terms that the 1st Defendant – the 2nd Respondent/Plaintiff – was the actual owner of motor cycle registration number KMFY 220R, and that the Appellant was merely its registered owner. Parties are bound by their pleadings, and a Court is not entitled to grant relief on a case which the party seeking it has not pleaded: see Independent Electoral and Boundaries Commission v Stephen Mutinda Mule & 3 Others [2014] eKLR. Having himself pleaded that the Appellant was no more than the paper owner and that actual ownership lay elsewhere, the 1st Respondent/Plaintiff could not thereafter invite the Court to fix the Appellant with the very species of ownership he had expressly attributed to another.
36. That pleading was, moreover, faithfully borne out by his own evidence. He told the Court that the owner of KMFY 220R was Robert Amwai Okillo, that the said Robert Amwai Okillo had personally told him so, and that the automobile was in bodaboda business. The Investigating Officer told the Court that the police abstract named Robert Amwai Okillo as the owner; that the rider had told the polic
[...truncated]
1. Car & General (Trading) Limited, the Appellant herein, was the 2nd Defendant in Vihiga Chief Magistrate’s Civil Suit No. E057 of 2022. By a judgment delivered on 21st January 2025, Hon. J. A. Agonda (PM) found the Defendants jointly and severally liable at 100% for a road traffic accident that occurred on 7th February 2022 and awarded the Plaintiff, now the 1st Respondent/Plaintiff, general damages of Kshs. 130,000/= together with the costs of the suit and interest thereon at Court rates from the date of judgment until payment in full.
2. Being dissatisfied with that decision, the Appellant preferred this appeal by a Memorandum of Appeal dated 12th February 2025, in which it set out thirty-one (31) grounds of appeal. The appeal is directed at both the finding on liability and, in the alternative, at the quantum of the award.
3. The 1st Respondent/Plaintiff, Alfred Lihanda Ominde, was the Plaintiff in the subordinate Court. The 2nd Respondent/Plaintiff, Robert Amwai Okillo, was the 1st Defendant. He neither entered appearance nor filed a defence;
an interlocutory judgment was entered against him on 27th October 2022. He has likewise not participated in this appeal, although he was duly served with the Record of Appeal.
The case before the Trial Court
(a) The pleadings
4. By a Plaint dated 16th March 2022 and filed on 18th March 2022, the 1st Respondent/Plaintiff sued both Defendants in negligence. At paragraph 4 of the Plaint he pleaded, in terms, that:
“At all material times to this suit, the 1st Defendant is the actual owner of motor bike registration number KMFY 220R while the 2nd Defendant is the registered owner of motor bike registration number KMFY 220R.”
5. At paragraph 5 he pleaded that on or about 7th February 2022 he was riding motor cycle registration number KMFX 758F along the Chugi – Muhudu marram road when motor cycle registration number KMFY 220R was so negligently, carelessly and/or recklessly ridden by “the Defendant, his rider, servant and/or agent” that it lost control and hit his machine, occasioning him bodily injury. He particularized the negligence complained of and pleaded two injuries, namely (a) tenderness along the left hand, and (b) a tender swollen right ankle joint. He prayed for general damages, costs and interest. No special damages were pleaded.
6. The Appellant entered appearance and filed a Statement of Defence dated 18th August 2022 in which it denied the claim in its entirety. Of present importance, at paragraphs 7 and 8 of that Defence the Appellant pleaded, in the alternative and without prejudice, that it is in the business of wholesale importation and distribution of motor cycles and three-wheeler motor vehicles; that if its name appeared as owner of motor cycle registration number KMFY 220R (which it denied), that was purely in compliance with the regulatory requirements of the National Transport and Safety Authority; and, critically, that it had sold the suit motor cycle to Robin Afric Limited on 11th January 2022, a date prior to the date of the alleged accident. The 1st Respondent/Plaintiff did not file a reply to that Defence.
(b) The evidence
7. The 1st Respondent/Plaintiff at the Trial Court called three witnesses. PC Damaris Mutunga, a Traffic Police Officer at Vihiga Police Station, produced the police abstract. It was her evidence that on 7th February 2022 motorcycle registration number KMFY 220R lost control, left its lane and hit motor cycle registration number KMFX 758F head-on, both automobiles sustaining frontal damage; that both were insured; and that the matter was under investigation by PC Koech. On cross-examination she testified that the initial report showed that KMFY 220R was ridden by one John Alta; that paragraph 1(a) of the police abstract named Robert Amwai Okillo as the owner of the machine; that upon interviewing the rider he stated that his employer was Robert Amwai; that Robert Amwai confirmed to the police that he was the person who had given the motor cycle to John Alta to ride; that Robert Amwai held possession while actual ownership and control of the automobile; and that the automobile was released to him as owner. On re-examination she confirmed that the registered owner according to the search was Car & General (Trading) Limited and that she blamed the rider of KMFY 220R for failing to keep his lane.
8. The Clinical Officer, Obadiah Ndege of Vihiga County Referral Hospital, produced the P3 form dated 9th February 2022, the treatment notes and the receipt. He classified the degree of injury as “harm” and confirmed that the 1st Respondent/Plaintiff was treated as an outpatient.
9. The 1st Respondent/Plaintiff testified in person. He is a bodaboda rider. He adopted his witness statement and produced his documents, including a copy of records from the Registrar of Motor Vehicles showing the Appellant as the registered owner. On cross-examination he was emphatic that the owner of KMFY 220R was Robert Amwai Okillo; that the said owner had personally told him so; and that the automobile was being used in bodaboda business and was at the material time transporting alcohol. He confirmed that he had never spoken to “Brian”, the other name appearing on the abstract.
10. For the defence, Joseph Mulwa Mwambi, the Appellant’s Logistics Coordinator in charge of motor cycles and three-wheeler motor vehicles (Staff Number 4191), adopted his statement dated 22nd August 2022 and produced three exhibits: DExh.1, a paid-up Tax Invoice/Delivery Note No. DIST350013040 dated 11th January 2022 in favour of Robin Afric Limited; DExh.2, the Appellant’s list of employees as at 28th February 2022; and DExh.3, a circular from the National Transport and Safety Authority (NTSA/DRL/REG.VOL.1) dated 7th September 2020. His evidence was that the Appellant does not own motor cycles for its own use or for commercial purposes; that it had sold the suit motor cycle to Robin Afric Limited on 11th January 2022, which took possession immediately upon purchase; that any registration of the automobile in the Appellant’s name was made purely to comply with the statutory requirements placed on importers and dealers by the NTSA; that neither the rider nor the 1st Defendant was its employee; and that the Appellant does not insure motor cycles that it sells.
THE JUDGMENT APPEALED FROM
11. The learned trial Magistrate framed five issues and resolved them as follows. On ownership, she held that the Appellant was the registered owner as at 7th February 2022, relying on the copy of records from the Registrar of Motor Vehicles, and added that this evidence “was fortified by Pw2 who produced the police abstract indicating the 2nd Defendant as registered owner.” She found, secondly, that the accident had indeed occurred as alleged.
12. On blameworthiness, the learned Magistrate preferred the 1st Respondent/Plaintiff’s version. She reasoned that the Appellant, liability being hotly contested, ought to have produced a comprehensive motor vehicle inspection report and called the motor vehicle inspector and the 1st Defendant; that DW1’s evidence went only to ownership and would have required corroboration by eye witnesses whom the Appellant did not call; that by dint of Order 2 Rule 6 of the Civil Procedure Rules she had “no option but to reject DW1’s version”; and that the Appellant’s failure to call eye witnesses attracted an unfavourable presumption under Section 119 of the Evidence Act. She then held that “The 1st Defendant who was the employee of 2nd Defendant ought to have been watchful of other road users” and concluded that “the 2nd Defendant was vicariously liable for his rider’s negligent act and having employed careless and unskilled driver.” She entered liability at 100% against the Defendants jointly and severally.
13. On quantum, and after considering George Mugo & Another v A.K.M (minor suing through next friend and mother of A.N.K) [2018] eKLR, George Kinyanjui t/a Climax Coaches & Another v Hussein Mahad Kuyala [2016] eKLR and Ndungu Dennis v Ann Wangari Ndirangu & Another [2018] eKLR, she awarded Kshs. 130,000/= as general damages for pain and suffering, declined to award special damages (none having been pleaded), and awarded costs and interest.
The appeal and the submissions
14. The thirty-one grounds in the Memorandum of Appeal are prolix and substantially repetitive. Reduced to their essentials, they raise five complaints: (i) that the trial Court erred in finding the Appellant to be the owner of motor cycle registration number KMFY 220R and in failing to appreciate the distinction between registered, beneficial and possessory ownership (grounds 1, 3, 5, 7, 8, 9, 18, 19, 25, 26, 28 and 30); (ii) that it erred in finding the Appellant vicariously liable in the absence of any evidence of an employment or agency relationship between the Appellant and the rider (grounds 11 to 17 and 24); (iii) that it misapplied the burden and standard of proof and disregarded uncontroverted documentary evidence (grounds 2, 4, 6, 20, 21, 22, 23 and 31); (iv) that it failed to follow binding authority (ground 27); and (v) that the award of damages was excessive in the circumstances (ground 29).
15. The appeal was canvassed by way of written submissions clustered in the following thematic areas: whether the trial Magistrate erred in finding the Appellant/2nd Defendant as the owner of the motorcycle registration No. KMFY 220R, whether the Appellant enjoyed any categories of ownership of
the motorcycle registration no. KMFY 220R after sale, whether the trial Magistrate erred in finding the Appellant/2nd Defendant vicariously liable for the accident, whether the trial Magistrate erred by not appreciating the evidence adduced when rendering the judgment, burden and standard of proof, and who should bear the costs. In buttressing the appeal grounded on this issues learned Counsel for the Appellant placed reliance on the principles elucidated in the following case law: Toroitich v Kibe & Another CA E124 of 2023 [2024] KEHC 251 KLR, Muhambi Koja v Said Mbwana Abdi [2015] eKLR, Abson Motors Ltd v Tabitha Syombua Mutua & Anther [2019] eKLR, Car & General Trading Ltd v Owino & Another [2023] KEHC 19397 KLR, Gichira Peter v Lucy Wambura Ngaku & Another (2021) eKLR, Jared Magwaro Bundi & Another v Primarosa Flowers Ltd [2018] eKLR, Securicor Kenya Ltd v Kyumba Holdings Ltd (2005) eKLR, Mohamed Guyo Boru v Richard Mwilaria Aritho [2022]eKLR, Nancy Ayemba Ngaira vs Abdi (2010) eKLR, Samuel Mukunya Kamunge v John Mwangi Kamuru in CA No. 34 of 2002, Wellington Nganga Muthiora vs Akamba Public Road & Another CA [2010] eKLR, General Motors East Africa Ltd v Eunice Alila Ndeswa & Another (2015) eKLR, Lion of Kenya Insurance Co. Ltd v Edwin Kibuba Kihonge[2018] eKLR, Statpack Industries Ltd vs James Mbithi (2005) eKLR, Christine Kalama v Jane Wanja Njeru & Another [2021] eKLR, John Nderi Wamugi vs Rubesh Okumu Otiagala & 2 Others Kisumu CA 24 of 2015, M.O.M Amin Transporters Ltd Mariam Amin Bahi v Alexander Ndung’u Mbugua & 2 Others [2019] eKLR, Morgan v Launchbury & Another 1972 2 ALL ER 606, Joseph Wabukjo Mbayi v Frida Onyango (2019) eKLR, Kiema Mutuku v Kenya Cargo Holdings Hauling Services Ltd (1991) 2KAR 258, Dharmagma Patel & Another v T A (a minor suing trhough the mother and next friend HH) [2014] eKLR, M’Bita Ntiro v Mbae Mwirichia & Another [2018] eKLR, Ahmed Mohammed Noor vs Abdi Aziz Osman (2019) eKLR, Alice Wanjiru Ruhiu v Messiac Assembly of Yahweh [2021] eKLR, Car and General Trading Ltd v Nyagaka & Another [2025] KEHC 1960 KLR, Cecilia
Karuru Ngayu v Barclays Bank of Kenya (2016) eKLR. All what the Learned Counsel invited the Court to appreciate in reference to the principles illuminated in the above cases is that the Appellant was wrongly sued in the Lower Court and further dragged to the High Court in a civil dispute which there are no justiciable issues to warrant any Court or independent Tribunal to make a finding on liability in any judgment as known in law. It was also the contention of learned Counsel that the Learned Magistrate failed to appreciate and internalize the doctrine of vicarious liability which flow from an employee/employer contractual relationship. He therefore prayed for the appeal to be allowed in so far as the connecting factors of liability are concerned in the civil claim filed by the Plaintiff Alfred Lihanda Ominde.
16. The Appellant’s essential contention is that the presumption of ownership created by Section 8 of the Traffic Act, Cap 403, is rebuttable; that it discharged the burden of rebutting it by producing a fully paid-up tax invoice and delivery note evidencing an absolute cash sale of the automobile to Robin Afric Limited on 11th January 2022, some four weeks before the accident, together with an NTSA circular explaining why the automobile stood registered in a dealer’s name; and that in the absence of any nexus between it and the rider of the machine, no vicarious liability could attach to it.
17. The 1st Respondent/Plaintiff, by submissions dated 16th April 2026 filed by Learned Counsel Ngala Awino, framed a single issue, namely whether the learned trial Magistrate erred in entering judgment in his favour. He submits that the Police Officer confirmed on cross-examination that the search revealed the automobile to be registered in the Appellant’s name; that DW1 conceded that the Appellant never initiated the transfer of the automobile and never applied to be struck out of the suit; that the Appellant never called the police to rebut his case; and that the trial Court properly evaluated the pleadings, the evidence and the submissions of both parties. He relies on Baro Ngo Sevelius Yophen v Jared Ndemo [2020] eKLR and urges that the appeal be dismissed with costs.
18. The 2nd Respondent/Plaintiff, against whom an interlocutory judgment had been entered in the trial Court, filed no submissions and made no appearance.
The duty of this Court as a First Appellate Court
19. This being a first appeal, my mandate is settled. In Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123 the Court of Appeal for East Africa stated that a first appeal is by way of retrial and that the first appellate Court is under a duty to reconsider and re-evaluate the evidence on record, weigh conflicting evidence and draw its own conclusions, bearing always in mind that it has neither seen nor heard the witnesses and must make due allowance in that respect. The same principle was restated in Kiruga v Kiruga & Another [1988] KLR 348.
20. That deference is not, however, unlimited. As was held in Peters v Sunday Post Ltd [1958] EA 424 and in Ephantus Mwangi v Duncan Mwangi
Wambugu [1982–1988] 1 KAR 278, an appellate Court will interfere with findings of fact where it is shown that the trial Court failed to take account of particular circumstances or probabilities, or misapprehended the evidence, or acted on a wrong principle, or where the impugned finding is one which no reasonable tribunal, properly directing itself on the evidence, could have reached. I approach the record with those principles firmly in mind.
Issues for determination
21. Having considered the Record of Appeal, the Supplementary Record of Appeal, the grounds of appeal and the submissions of Counsel, the issues that fall for my determination are these:
i. Whether an accident occurred on 7th February 2022 involving motor cycles registration numbers KMFY 220R and KMFX 758F, and whether it was occasioned by the negligence of the rider of KMFY
220R; ii. Whether the Appellant was the owner of motor cycle registration number KMFY 220R at the material time;
iii. Whether, on the evidence on record, the Appellant was vicariously liable for the negligence of the rider of that machine;
iv. Whether the learned trial Magistrate properly drew an adverse inference against the Appellant under Section 119 of the Evidence Act and properly invoked Order 2 rule 6 of the Civil Procedure Rules;
v. Whether the award of Kshs. 130,000/= in general damages warrants interference; and
vi. Who should bear the costs of this appeal and of the suit in the Subordinate Court.
Analysis and determination
(i) The occurrence of the accident and the negligence of the rider of KMFY 220R
22. The tort of negligence in road traffic accidents is proven by establishing that out of the two or more parties on the highway or any motorable roads either one of them breached the duty of care and as a result of which it led to loss, injury or damage to the Claimant/Plaintiff that was foreseeable. This is the position taken by the persuasive authority of Ng Chun Pui and Ng Wang King v Lee Chuen Tat et al [198] UK PC 7 reminds us of the burden and standard of proof in a negligence matter. He stated at pages 3 and 4 of his judgment that:
“The burden of proving negligence rests throughout the case on the Plaintiff. Where the Plaintiff has suffered injuries as a result of an accident which ought not to have happened if the Defendant had taken due care, it will often be possible for the Plaintiff to discharge the burden of proof by inviting the Court to draw the inference that on the balance of probabilities the Defendant must have failed to exercise due care, even though the Plaintiff does not know in what particular respects the failure occurred…… it is the duty of the judge to examine all the evidence at the end of the case and decide whether on the facts he finds to have been proved and on the inferences he is prepared to draw he is satisfied that negligence has been established.”
23. The key principles on two vehicles collision which must be tested evidentially by the trial Court:
• No Automatic Presumption: The mere fact that a head-on or rear-end collision occurred between two vehicles does not mean both drivers are equally to blame.
• Standard of Proof under Section 107(1) of the Evidnec Act: In Road Traffic Accident cases Claims Tribunal negligence is judged on preponderance of probability, not proof beyond reasonable doubt.
• Specific Attribution: Contributory or composite negligence requires direct evidence showing a specific act or omission (such as excessive speed, wrong side driving, or lack of lights on a parked vehicle) that materially contributed to the accident.
• Duty of Care: The legal obligation to avoid actions or omissions that could foreseeably harm other road users.
• Breach of Duty: The failure to act like a reasonably prudent driver under similar circumstances.
• Causation: A direct link showing that the Defendant’s breach was the proximate cause of the accident.
• Damages: Proof of actual physical, financial, or property damage resulting from the crash
24. A Trial Court is always faced with the issue of dealing with the challenge on the ground of contributory negligence to be attributed to the victim in a road traffic accident claim. There is therefore the question of proximate cause on causation issues with regard to the breach of the duty of care. In exercising judicial discretion, the core elements of negligence in road traffic accidents must be factored in making a finding on liability. This is the position the Courts have taken in Kenya in reaffirming the jurisprudence on the elements of negligence:
• Mutunga v Mukadili (Civil Appeal E104 of 2024): The High Court reestablished that the complete burden of proof lies on the Plaintiff to distinctly establish duty, breach, causation, and injury. The Court emphasized that judges must evaluate the specific credibility of testimonies and the cogency of the facts rather than relying blindly on general accident occurrences
• Minor & another v Kurui (Civil Appeal E011 of 2023): Citing the foundational common law doctrine from Donoghue v Stevenson, the High Court ruled that a claimant cannot succeed in an active road traffic claim without proving that a duty of care was owed, that it was breached, and that the loss directly flowed from that breach. Notably, the Court clarified that medical records do not necessarily require rigid documentary treatment notes if oral evidence establishes a cohesive timeline of injury.
• Orioki v Kevian Kenya Limited (Civil Appeal 341 of 2019): This case dealt heavily with the standard of care regarding following distance. The Court confirmed that under the traffic rules of Kenya, drivers have an implicit duty of care to maintain a safe stopping distance. Failing to do so constitutes a direct breach, making the rear-ending driver wholly liable for the proximate cause of the collision.
• Mwaka v Karua & another (Civil Case E261 of 2022): The Court cited Telkom Kenya Limited & 2 others v. to rule that every driver is under a common law obligation to exercise a high degree of caution toward passengers and other road users. Crucially, the judgment underscored that a Police Abstract is only proof that an accident was reported, not proof of negligence itself. The Plaintiff must adduce independent evidence describing how the driver’s negligence triggered the event.
• Muchemi v Mbugua & Another (2009 eKLR): The High Court found the Defendant 100% liable for negligence because he breached his duty of care by driving on the wrong side of the road, leading directly to a headon collision with the Plaintiff’s vehicle.
25. This appeal will be tested within these parameters of the law to establish whether the Trial Court was able to determine liability within the laid down principles. On this issue the evidence was, in truth, all one way. The 1st Respondent/Plaintiff testified that he was lawfully riding motor cycle registration number KMFX 758F from Chugi when motor cycle registration number KMFY 220R, coming from the direction of Mulundu, lost control at a corner, crossed into his lane and collided with him head-on. The
Investigating Officer confirmed the frontal damage to both machines, consistent with a head-on collision, and confirmed that KMFY 220R had left its lane. The police abstract, produced without objection, records an accident on that date, at that place, involving those two machines.
26. A rider who permits his automobile to leave its own carriageway and to cross into the path of oncoming traffic is, in the absence of any explanation, negligent. No explanation was offered. Neither the rider nor the 2nd Respondent/Plaintiff gave evidence, and the Appellant – whose case was not that the accident happened differently but that it had nothing whatever to do with the automobile – offered none. The particulars of contributory negligence pleaded in the Defence were wholly unsupported by evidence and were, in substance, abandoned. On my own independent re-evaluation of the evidence I am satisfied, on a balance of probabilities, that the accident occurred as alleged and that it was occasioned wholly by the negligence of the rider of motor cycle registration number KMFY 220R. To that extent the finding of the trial Court that liability lies at 100% is unassailable, and I affirm it.
27. I should note, in passing, that the opening paragraph of the impugned judgment describes the 1st Respondent/Plaintiff as a “pillion passenger onboard the Defendant’s motor vehicle registration number KMFX 758F.” That is inaccurate: KMFX 758F was the 1st Respondent/Plaintiff’s own automobile and he was its rider, carrying a pillion passenger of his own. The error is, however, immaterial to the outcome, since on either footing he was a lawful road user against whom no blame was established.
(ii) Was the Appellant the owner of motor cycle registration number KMFY 220R?
28. This is the pivot on which the appeal turns. Section 8 of the Traffic Act, Cap 403, Laws of Kenya 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.”
29. The words “unless the contrary is proved” are the whole point. Section 8 creates a presumption, not a rule of title, and the presumption is rebuttable. In Osapil v Kaddy [2000] 1 EA 187 the Court of Appeal of Uganda held that a registration card or logbook is only prima facie evidence of title to a motor vehicle. In Nancy Ayemba Ngaira v Ali Abdi [2010] eKLR, Ojwang J (as he then was) observed that the indication on a certificate of search is not final proof that the sole owner is the person whose name is shown, and that judicial practice has developed the concepts of actual ownership, beneficial ownership and possessory ownership, any of which may, for practical purposes, be far more relevant than the name on the register. In Ramesh V. Hiran v Justus Murianki & Another [2017] eKLR, Gikonyo J held that registration in the register of motor vehicles is prima facie proof of ownership but may be rebutted by evidence; and in Samuel Mukunya Kamunge v John Mwangi Kamuru [2005] eKLR, Okwengu J (as she then was) recognised that vehicles often change hands without the records being amended, so that a certificate of search is not conclusive proof of actual ownership. The same approach was taken by Aburili J in
Car & General Trading Limited v Owino & Another (Civil Appeal No. E098 of 2021).
30. The 1st Respondent/Plaintiff discharged his initial evidential burden by producing the NTSA copy of records, which shows the Appellant as the registered owner as at 10th March 2022. The presumption thereupon arose, and with it the evidential burden shifted to the Appellant under Section 109 of the Evidence Act to prove the contrary. The question is whether it did so.
31. In my judgment it did, and by a considerable margin. The Appellant produced DExh.1, a Tax Invoice/Delivery Note No. DIST350013040 issued by its Nakuru Distribution Branch, dated 11th January 2022, in favour of Robin Afric Limited. That document is not a bare assertion. It particularizes each automobile sold by chassis number, engine number and registration number. Among the units listed is a TVS Star HLX 150 bearing chassis number MD625AE32M1F03611, engine number BE3FM1803371 and registration number KMFY220R. Those three particulars correspond precisely, digit for digit, with the particulars appearing on the NTSA copy of records produced by the 1st
Respondent/Plaintiff himself. The document bears the stamp and signature of the purchaser, Robin Afric Limited, dated 12th January 2022, acknowledging receipt, and it is expressed to be fully paid, the total consideration for the consignment being KES 4,019,672. The accident occurred on 7th February 2022 – some four weeks after that sale and delivery.
32. The Appellant went further and explained why its name appeared on the register at all. DExh.3 is a circular from the National Transport and Safety Authority dated 7th September 2020 addressed to all motor vehicle and motor cycle dealers, which directs that registration of any unit shall be as per the customs entry, and that “the dealer or the importer should apply for registration under their names and KRA PIN as per the declaration of the Custom’s Entries”, failing which any application at variance with that requirement would be rejected with effect from 9th September 2020. That explanation is corroborated on the face of the very search relied upon by the 1st Respondent/Plaintiff: it records a Customs Entry Number (2021NKU145689), a date of registration of 7th December 2021, and the condition of the automobile as “New”. Those are the hallmarks of a dealer’s importation registration, not of a user’s registration.
33. Finally, the Appellant produced DExh.2, its list of employees as at 28th February 2022, running to some 565 names. Neither John Alta, the rider, nor Robert Amwai Okillo, the 2nd Respondent/Plaintiff, appears anywhere upon it.
34. None of this evidence was met by evidence in rebuttal. The 1st Respondent/Plaintiff filed no reply to the Defence. He raised no objection when DExh.1 was produced. He led no evidence impugning its authenticity. The whole of the cross-examination on the point went to a single, and quite different, proposition – that the Appellant had not completed the transfer of the automobile at the NTSA. That, with respect, does not answer the case. Failure to procure the amendment of a public register is a regulatory omission; it does not undo a concluded contract of sale under which property and possession have passed for full value. As the authorities cited above make plain, the very mischief which Section 8 accommodates is that machines change hands while the records lag behind. Uncontroverted documentary evidence of an antecedent sale is precisely the sort of “credible and cogent evidence” which rebuts the statutory presumption.
35. There is, however, a further and to my mind conclusive consideration, and it is one which appears not to have been drawn to the attention of the learned trial Magistrate. The 1st Respondent/Plaintiff’s own Plaint, at paragraph 4, pleaded in terms that the 1st Defendant – the 2nd Respondent/Plaintiff – was the actual owner of motor cycle registration number KMFY 220R, and that the Appellant was merely its registered owner. Parties are bound by their pleadings, and a Court is not entitled to grant relief on a case which the party seeking it has not pleaded: see Independent Electoral and Boundaries Commission v Stephen Mutinda Mule & 3 Others [2014] eKLR. Having himself pleaded that the Appellant was no more than the paper owner and that actual ownership lay elsewhere, the 1st Respondent/Plaintiff could not thereafter invite the Court to fix the Appellant with the very species of ownership he had expressly attributed to another.
36. That pleading was, moreover, faithfully borne out by his own evidence. He told the Court that the owner of KMFY 220R was Robert Amwai Okillo, that the said Robert Amwai Okillo had personally told him so, and that the automobile was in bodaboda business. The Investigating Officer told the Court that the police abstract named Robert Amwai Okillo as the owner; that the rider had told the polic
[...truncated]