(Being an appeal from the Judgment of Hon. S. A Opande (P.M) delivered on 31st May 2023 in Milimani Commercial Courts Civil Suit No. 8662 of 2019)
JUDGEMENT
INTRODUCTION
- 1.The appellant filed a memorandum of Appeal dated the 12th June 2023 raising 30 grounds of appeal. The appellant seeks to have the whole of the Judgment by Learned Honourable Magistrate set aside and the suit dismissed with costs.
- 2.The appellant in his multiple grounds of Appeal raises the following issues;
- a)Whether a defendant can be held liable over an accident for failing to enjoin the owner of a motor cycle as a third party to the suit where the defendant alleges to have had sold the motor cycle as a third party to the suit where the defendant alleges to have had sold the moto cycle as at the time of the accident
- b)What is the position of the law regarding the joinder of a third party as per order 1 Rule 15 of the Civil Procedure Rules 2010 (Revised 2020).bWhether a party who has since sold a motor cycle (or vehicle) can be held Liable for an accident occurring after the sale.
- c)Whether such a seller can properly be deemed to be a stranger to the activities of the buyer and his agents after the sale;
- d)What is the interpretation of Section 8 of the Traffic Act on presumption of ownership.
- e)Whether dealers in Motor Vehicles can be registered as owners of motor vehicles for purposes of sale only;
- f)What is the legal effect of having the name of the dealer appearing on the NTSA records as the owner?
- g)Whether the trial court having established that the appellant had sold the subject motor cycle, could nevertheless proceed and hold the seller liable for the accident caused by a rider who was not under the direction and control of The Appellant.
- h)Whether vicarious liability would be applied where the appellant had disposed of the subject motorcycle and lost control of the same to third parties.
- i)What would be the legal basis for a court to apportion liability upon the seller where the rider is neither proved to be his employee or agent.
- j)Whether the plaintiff could succeed in his claim against the appellant where the rider who caused the accident remained unknown even to the police k)who investigated the accident;
- l)Whether in the circumstances of this case the Respondent had discharged had discharged the burden of proof to establish his claim;
- m)Whether the learned Honourable Magistrate was correct in her determination of “the owner” of the subject motorcycle as per the Evidence Act.
- n)Whether the award in damages was reasonable in the circumstances of the case.
- 3.In order to determine the above stated issues this court as a first appellate court is under duty to re-evaluate the Evidence tendered before the trial court and draw its own conclusions. The court is acutely aware that it has not had the opportunity to see nor hear any of the witness thus it will give due allowance for that.
ANALYSIS OF THE EVIDENCE AND THE LAW
4.The Respondent by way of a plaint filed in court on 25th November 2019 filed a suit against the Defendant as the registered owner of motor cycle registration number KMEM 910 E.
5.The plaintiff alleged that on the 1st June 2019 he was a pillion passenger on the said motorcycle when the rider collided with an unknown Motor Vehicle along North Airport Road occasioning the plaintiff injuries which include: fracture of the femur and Fracture of the shaft of the right femur.
6.According to the plaintiff the accident was causing by the reckless negligent driving of the Motor cycle by the rider who he did not know. The plaintiff at the time of the accident was a construction worker earning Ksh. 17,000/ per month.
7.The Respondent claimed the sum of Ksh. 100,000/= in general damages for future medical expenses to remove the metal implant. the Respondent pleaded the sum of Ksh. 3050 as special damages.
8.The Appellant filed her defence on 11th March 2020 and denied liability in toto. The appellant maintained that the motor cycle KMEM 910 E was not owned by the Company and that the Appellant had as at the time of the accident sold the subject motor cycle to JACARANDA BODBODA operators.
9.The sale receipt was indicated as TRD 110116658 and a delivery Note No. TRD 110007397. The sale according to the Appellant happened prior to the occurrence of the accident as per the amended statement of defence.
10.Further the appellant contended that the rider who had the possession of the motor cycle at the time of the accident was not its employee and was a total stranger.
11.)The facts being as they are stated by the parties, the court has perused the lower court recorded as well as the record of Appeal.
12)The Respondent’s statement dated 7th August 2019 does not bring out the name of the rider of the motor cycle rider.
13)The Respondent categorically stated that he blamed the unknown rider for the occurrence of the accident for he was negligent and reckless in the manner he drove the motorcycle.
14)The Respondent produced the motor vehicle Records of KMEM 910 E as held by the National Transport and Safety Authority as at 1st August 2019 indicating the appellant as the owner of the motorcycle.
15)A look at the record leaves no doubt in my mind the lawful and recognized owner of the motor cycle as at 1st August 2019 was the appellant and as such the accident having occurred on 1st June 2019 as per the police abstract issued on 22nd June 2019, he could not escape liability.
16.)It was upon the Appellant to prove that indeed they had sold and transferred the motorcycle to JACARANDA BODABODA OPERATORS as alleged in their defence.
17)It is the view of this court that the fact of sale of the motorcycle to any to any other person was a fact within the special knowledge of the Appellant and that the burden lay squarely on the Appellant to present inconvertible evidence of sale and delivery of the motorcycle to the third party he alleged to have had sold to.
18)The delivery Note relied on by the Appellant was dated 6th February 2018. On the face of the document the handwritten notes indicate collection by GEOFFREY KIRADA ISABWA and there is no date given below the signature. It is thus not possible to tell when the said Geoffrey collected the motor cycle.
19)Further, on the right hand side of the delivery note, there is yet another indication of collection of KMEM 910 E on 02/7/2018 by ISMAIL OWUOR. The inconsistencies in the documents could only be explained by the appellant through his witnesses. However, the appellant did not do so.
20)The court notes that there is also another signature appearing on the face of the document bearing the date 2/6/2018. It is not possible for one to tell who this signatory was and what the person was signing for.
21)Further, at page 40 of the record of Appeal is a Cash sale/Delivery Note. The document has a stamp impression of car and General Motors Limited Head Officer indicating “paid”. Notably, the date on the stamp is 02 June 2018. The items indicated on the face of the document are tool kit, manual license holder and a warranty card not a motor bike.it is not clear why this document was relied on by the appellant.
22)The appellant in his submissions contended that they had the option of either enjoining a third party to the suit or not. The appellant faults the trial court for disregarding the provisions of Order 1. Rule 15 of the Civil Procedure Rules.
23)In the Appellants view the fact that they did not seek to enjoin JACARANDA BODABODA operators should not have been used against them by the trial court. It would therefore follow that the appellant was comfortable with his defence and thus the duty was upon him to prove on a balance of probabilities to the satisfaction of the court that he had actually sold the motor cycle and was therefore not in control and the use thereof.
24)The appellant submitted further that the police Abstract did not indicate that they owned or insured the motorcycle in question. Counsel placed reliance on the case of Mohumbi Koja Vs Said Mbwana Abdi (2015) Eklr in which it was held:
“In a nutshell, a police abstract report or any other form of evidence will be proof of ownership of a vehicle and displace the registration (Logbook) has since transferred and divested himself of its ownership to the person named in the Abstract report on in that other form of Evidence”.
25)Following the Appellant’s submissions, I have examined the police Abstract appearing at Page 13 of the Record of Appeal and noted that on the part where the Name and address of the vehicle Reg. No. KMEM 091 E appears, the police simply indicated the registration Number and the word “RIDER”. The owner remained unknown on the face of the Abstract.
26)The Police Abstract therefore does not assist the case of the Appellant on the critical issue of ownership.
27)The only document that is therefore left as proof of ownership is the record held by the National Transport and safety Authority appearing on page 18 of the record indicating the owner to be the Appellant
.28)The Respondent having proved that the motorcycle was in the name of the Appellant as at 1st August 2019, the burden shifted to the Appellant to prove. Otherwise.
29)It is not permissible to sell a motor cycle as in this case and fail to transfer ownership.
30)To permit this would be to expose road users to serious safety risks in that all that parties would do is purchase vehicles and fail to change ownership in order to avoid liability should anything happen.
31)The courts cannot accept delivery notes and cash sale receipts evidence enough to displace government records such as those held by the National Transport and Safety Authority.
32)The attendant security risks would be catastrophic because such documents are easy to create in the digital era more so considering that the documents are computer generated.
33)The National Transport and Safety Authority is created under Act No. 33 of 2012 to among other things register and licence motor vehicles under Section 4(2)
34The purpose of registration is to ensure that anyone seeking to know who owns a particular vehicle can query the Authority and establish who the registered owner of the vehicle owner is.
35We must attach some value and weight to the Log books that vehicle owners hold. It is precisely the reason that the courts accept as recognizance in appropriate cases. To hold otherwise would be to usher unfathomable confusion in the regulation of motor vehicles on our public roads.
36.The position advanced by the Appellant would be a recipe for chaos if courts were to accept that registered owners of motor vehicles were to be allowed to simply appear with cash sale receipts before lawful authorities and deny ownership of a motor vehicle purporting to have sold the same yet there are no transfer documents.
37.Let me make it clear here that it is the duty of the seller of a motor vehicle to ensure that once the registered owner sells the vehicle, the same is immediately transferred to the new owner otherwise liability over anything arising from the use of that motor vehicle would attach to the owner.
38.If the Appellant had wanted to persuade the court that it had indeed sold the motor cycle nothing would have been easier than for the Appellant to call evidence to show that JACARANDA BODABODA operators had purchased the motorcycle.
39.The appellant’s witness D1 JOSEPH MULWA MWAGI who was the General manage Logistics testified that the Appellant did not inform JACARANDA BODABODA operators of the case and he similarly did not produce any evidence to demonstrate initiation of transfer.
40.The appellant having failed to issue a third party notice then learned Honourable Magistrate was right in his finding that the Appellant was 100% Liable. The motor cycle having been registered in its name the Appellant ought to have known that the burden was on them to prove otherwise. The appellant by omitting to enjoin the third party left himself as the only identifiable owner before court against whom orders could be made. It was the appellants choice and he must live with the consequences thereof.
41.In Pauline Wangare Mburu, Vs Benedict Raymond Kutondo NKU HCCC No.210 of 2023 [2005] eKLR Kimaru, J (as he then was held):-
“The defendant did not deem it fit to issue a third party notice to enjoin the owner of the Motor Vehicle Registration Number KAH 129 V to this suit. In the circumstances therefore, it would be moot for this court to apportion liability to a person who is not a party to this suit. The defendant shall therefore bear 100% liability”.
42.The appellants here did not similarly choose to enjoin the JACARANDA BODABODA operators whom he claims to have bought the motorcycle. The omission therefore exposed him to liability solely since the records of the motorcycle ownership still reflected the Appellant as the registered owner.
43.The learned Honourable Magistrate was therefore was correct in relying on the decision Majanja J in Charles Okwoyo Getume Vs Carolyne Nyangarisa [2018] eKLR.
45.Further, the Appellant submitted that the rider was not his employee or agent. Again this rider as indicated in the police Abstract and the Respondents Evidence remains unknown. The court cannot issue orders against a unknown person yet there is clear and incontrovertible evidence that the Appellant was the registered owner as per Government records.
The only person in law who can be presumed to have had the knowledge of whoever had the motor cycle at the time of the accident would be the owner of the motor cycle.
46.The court has found as a matter of fact that the Motor cycle was registered in the appellant’s name and the Appellant being a company could only operate the motorcycle through its agents or authorized persons. It therefore follows that whomsoever had the motorcycle had the authority to ride it from the registered owner. The appellant did not persuade the learned magistrate that property had changed hands. I too have been unable to find an iota of evidence to support such a proposition.
47.The Appellant has also submitted that they were held vicariously liable wrongly. The Judgement of the learned Honourable Magistrate at page 7 clearly indicates that the trial court found the issue of vicarious liability to be an issue that was not properly raised by the Appellant.
48.According to the Magistrate since the same was not pleaded thus it was rejected.
49.In Jared Magwaro Bundi & Another Vs Primarosa Flowers Limited [2018] eKLR the court of Appeal stated: -
“The burden is discharged if on a balance of probabilities, it is shown that as a matter of fact the vehicle had been transferred but not yet registered, to a de facto owner, a beneficial owner or a possessory owner. Such owner though not registered for practical purpose may be more relevant than that in whose name the vehicle is registered”. In this case there was no evidence of transfer. It is thus not possible to accept the argument proffered by the appellant without cogent evidence of transfer.
50.The court of Appeal set out a precondition to holding any other person other than the registered owner liable for any accident arising out of the use of a motor vehicle. The condition from a reading of the decision is that transfer must have taken place even though registration had not been effected.
51.In the instant Appeal there was no evidence of transfer or even a single document to show that the process of transfer had been initiated.
52.Further, not even at sale agreement was presented. The Appellant’s defence could therefore not succeed.
53.As to whether the damages awarded were inordinate, this court finds that the award granted by the court was reasonable in the circumstances considering the injuries suffered by the Respondent. The assessment of damages being a matter of exercise of judicial discretion, i find no justifiable cause to interfere.
54.In the end, the appeal is dismissed with costs to the Respondent.
55.It is so ordered.