(Being an Appeal from the Judgment of the Senior Principal Magistrate Honourable Mrs. Wanjala delivered on the 13th day of May 2021 in Milimani CMCC No. 5495 of 2010)
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1. This appeal arises from the judgment in Milimani CMCC No. 5495 of 2010 delivered on the 13th day of May 2021. The appellant was found to be 50% liable and judgment was entered in favour of the 1st respondent. The 1st respondent was awarded general damages of Kshs. 1,000,000/- for pain and suffering, Special damages of Kshs. 2,300/-
2. Dissatisfied with the court’s decision, the appellant lodged this appeal citing 5 grounds of appeal as follows: -
i) The Learned Magistrate erred in law and fact by not taking into account the Appellant’s submissions on liability thereby erroneously finding the Appellant 50% liable, in spite of Page 2 of 8 the fact that the 1st Respondent had not established that the Appellant was the beneficial owner of Motor Vehicle Registration Number KAG 140Z.
ii) The Learned Magistrate erred in law and in fact in ignoring the Appellant’s evidence that it had sold the Motor Vehicle Registration Number KAG 140Z to a third party who then transferred the said vehicle to the 2nd Respondent.
iii) The Learned Trial Magistrate erred in law and fact by holding that the Appellant was vicariously liable for the actions of the 2nd Respondent, whilst disregarding evidence that the 2nd Respondent was not an employee of the Appellant.
iv) The Learned Trial Magistrate erred in law and in fact when she found that the evidence of the 1st Respondent was sufficient to prove negligence on the part of the Appellant.
v) The Learned Magistrate erred in law and in fact by failing to take into account the Appellant’s submissions on quantum thereby erroneously awarding the 1st Respondent damages which are inordinately high and excessive given the nature of the injuries sustained by the 1st Respondent.
Brief Facts of the case
3. In that case, the Appellant was sued alongside the 2nd Respondent by the 1st Respondent for injuries sustained by the 1st Respondent in a road traffic accident. The Appellant was sued in its capacity as the registered owner of the motor vehicle KAG 140 Z while the 2nd Respondent was sued as the driver of the said Motor vehicle. The particulars of the said road traffic accident is that on 26th of June 2009, the 1st Respondent was a pedestrian along Lithuli Avenue when he was knocked down by the motor vehicle KAG 140 Z which was being driven by the 2nd Respondent.
4. The 1st Respondent sought damages as follows;
i) General damages and Special Damages
ii) Costs of the suit
iii) Interests in both (a) and (b) above
iv) Any other or further relief that this honourable court may deem fit and just so to grant.
5. In a defence dated 24th January 2011, the Appellant denied allegations levelled against it and stated that the 2nd Respondent herein was not a driver, employee, servant and or agent of the Appellant and that the Appellant was the registered owner of the motor vehicle KAG 140 Z only by the virtue of the fact that it was the financier of the said motor vehicle to Esther Wangui Maina who later sold the Motor Vehicle to Maina Kinuthia the 2nd Respondent in this appeal.
6. Directions were given that the appeal be canvassed by way of written submissions. Accordingly, the Appellant and the 1st Respondent complied and filed their respective submissions.
Appellant’s Submissions
7. The Appellant submits that it is not the owner of motor vehicle registration No. KAG 140 Z and mere appearance of the Appellant’s name on the log book, does not automatically make the appellant the owner of the said motor vehicle. Accordingly, the Appellant contends that the learned trial magistrate failed to take into consideration the evidence adduced by the appellant which demonstrated that the appellant was a mere financier and not the beneficial owner of the said motor vehicle.
8. To further buttress its submission on liability, the appellant has cited section 8 of the Traffic Act, cap 403 which states 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.” He contends that the appearance of its name in the logbook can be disputed by evidence submitted explaining the inclusion of its name in the logbook. It relied on Civil Appeal 40 of 2019 (Royal Hisham (K) Limited vs Diamond Trust Bank (K) Ltd & Another, where the High Court stated;
“…an entity or person whose name appears in a logbook can dispute ownership by adducing evidence to the contrary thus explaining the objective for inclusion of its or his name in the logbook. In other words, the mere appearance of a litigant’s name in a log book does not automatically make him or her the owner of a motor vehicle for purposes of satisfying an accident claim or claims…”
9. The appellant submitted that it furnished the trial court with sufficient evidence that it had been registered as the owner of the motor vehicle for the sole purpose of securing the finances advanced towards the purchase of the said motor vehicle. Further, it was submitted that upon completion of payment of the advanced loan, the appellant released all the requisite documents to the loanee Esther Wangui Muigai, including a signed transfer form. The appellant further submitted that it had never been in actual control, possession and or beneficial ownership of the said Motor vehicle since it was acquired by the loanee and thus could not be deemed as the beneficial owner of the motor vehicle.
10. On vicarious liability, the appellant submitted that there was no employer-employee relationship between the Appellant and the 2nd Respondent. It was submitted that in releasing the documents upon payment of the loan, the appellant released all interest in the motor vehicle. It was also submitted that the Appellant never took control of the said motor vehicle and it was also not privy to any sale agreement between the 2nd Respondent and the Loanee Esther Muigai and the neither did it benefit from the sale of the said motor vehicle.
11. To support its submissions that the appellant is not vicariously liable, the appellant placed reliance on the case of Ali Abdi Dere vs Hash Hauliers Limited and another [2018] eKLR and Royal Hisham (K) Limited vs Diamond Trust Bank (K) Ltd & Another where the high court opined that a financier who is registered as a joint owner of a motor vehicle cannot be held liable of any claim arising out of an accident occasioned by any authorised driver of the purchaser.
12. Lastly, the appellant submitted that the amounts awarded were inordinately high since the trial court failed to take into account the appellant’s evidence on quantum and in regards to special damages the Appellant submitted that only those with receipts are to be awarded. Placing reliance on Akamba Public Road Services vs Abdikadir Adan Galgalo [2016] eKLR, Daniel Otieno Owino &Another vs Elizabeth Atieno Owour [2020] eKLR and Peter Gakere Ndiangui vs Sarah Wangari Maina [2021] eKLR, the Appellant submitted that damages should have been awarded at kshs. 500,000.
1st Respondent’s Submissions
13. The 1st Respondent submitted that the Learned trial Magistrate did not make any finding on the beneficial ownership of the suit motor vehicle. It was further submitted that the Appellant was sued in its capacity as the registered owner and not as its beneficial owner. The 1st Respondent submitted that no evidence was tendered before the trial court to support the claim by DW1 (Esther Wangui Maina) that she had sold the said motor vehicle to the 2nd Respondent. Further, the 1st Respondent pointed out that the sale agreement produced before court showed that the purchaser was the Appellant and nothing in the Agreement expressly stated that the Appellant was purchasing the suit motor vehicle on behalf of its employee (DW1). Further, it was submitted that there was no evidence whatsoever to suggest that the Appellant either transferred the motor vehicle to its alleged employee or the alleged third party and there was also no evidence that the Appellant only financed the purchase of the said Motor Vehicle.
14. Regarding vicarious liability, the 1st Respondent submitted that there was no evidence presented by the Appellant to indicate that the 2nd Respondent was wrongfully driving the said Motor Vehicle or that it was stolen and thus in the absence of such evidence, a strong assumption arises that the motor vehicle was driven by a person for whose negligence the owner is responsible. The 1st Respondent rely inter alia on Kenya Bus Services Ltd v Dina Kawira Humphrey [2003] eKLR where the Court of Appeal cited Karisa V Solanki [1969] EA 318, where it was held that;
“Where it is proved that a car has caused damage by negligence, then in the absence of evidence to the contrary, a presumption arises that it was driven by a person for whose negligence the owner is responsible (See Bernard V Sully [1931] 47 TLK 557. This presumption is made stronger or weaker by the surrounding circumstances and it is not necessarily disturbed by the evidence that the car was lent to the driver by the owner as the mere fact of lending does not of itself dispel the possibility that it was still being driven for the joint benefit of the owner and the driver.”
15. It is also the 1st Respondent’s submission that the learned trial magistrate considered both the Appellant’s and the 1st Respondent’s submissions in awarding damages. It was submitted that the Appellant did not demonstrate in any way how the Learned Trial Magistrate erred in the determination on quantum of damages and thus this court should uphold the findings of the trial court on quantum. The 1st Respondent cited and relied on the cases of Joseph Mwangi Wanyeki v Alex Muriithi Mucoki & another [2019] eKLR and GA (Minor suing thro’ her father and next friend BZ) v Paul Muthiku [2020] eKLR. The 1st Respondent urged this court to dismiss this appeal and award costs to the 1st respondent.
Issues for Determination
16. Being a first Appeal, this court relies on a number of principles as set out in Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123:
“...this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.”
17. I will consequently put my mind to the following issues for determination by this court in my view:
a) Whether the trial court erred by finding the Appellant as the beneficial owner of the said motor vehicle;
b) Whether the Appellant was vicariously liable for the accident in question
c) Whether or not there are any grounds to warrant this court to interfere, set aside or vary the award of damages made by the lower court.
Legal Analysis
18. The trial court in page 7 of the judgment analysed the issue of liability and observed that there was a missing link between the 2nd Respondent and Esther Wangui Muigai who received the loan from the Appellant. The 1st Respondent has also pointed out that the sale Agreement of the motor vehicle KAG 140 Z was between the Appellant and Nancy Njeri Ndichu and it did not indicate the name of the loanee Esther Wangui Muigai. We do note however that the loan agreement produced by the appellant in the Trial court indicated that the purpose of the loan advanced to Esther Wangui Muigai was for the purpose of purchasing the said motor vehicle. The Appellant’s claim that upon repayment of the loan, the company did release the original logbook and signed transfer of ownership of the motor vehicle as well a copy of the company’s pin certificate and certificate of incorporation has not been supported by any evidence adduced by the Appellant in the Trial court. DW1 (Esther Wangui Muigai) did in fact testify in court that the vehicle was released to her upon clearing the loan and she later sold the motor vehicle to the 2nd Respondent. On cross examination, DW1 stated that the 2nd Defendant (now the Appellant) sold the vehicle on her behalf to the 1st Defendant (now the 2nd Respondent). There was no evidence adduced before the trial court to prove that indeed the said Motor Vehicle was sold to the 2nd Respondent.
19. In Benard Muia Kilovoo Vs. Kenya Fresh Produce Exporters (2020) eKLRthe court opined that
“(i) That the presumption that the person registered as owner of the motor vehicle in the logbook is the actual owner is rebuttable.
(ii) Where there exists other compelling evidence to proof otherwise then the court can make a finding of ownership that is different from that contained in the logbook.
(iii) Each case must however be considered in its own peculiar facts.”
20. The court in Anthony Kuria Wangari v Guardian Bank Limited [2021] eKLR at paragraph 18 opined that it ought to be proven on a balance of probability that the motor vehicle had been transferred as at the date of the accident. The Appellant has not provided any proof to support its claim that there was indeed a transfer to DW1 Esther Wangui Muigai and subsequently to the 2nd Respondent. We therefore uphold the trial court’s finding that the Appellant was the duly registered owner of the said Motor Vehicle and consequently it is the courts finding that it shall not delve into the issue of vicarious liability.
21. On the quantum of damages, as correctly submitted by Counsel for the respondent and as was held in the cases of Bashir Ahmed Butt vs. Uwais Ahmed Khan (1982-88) KAR as was cited by Otieno J. in GA (Minor suing thro’ her father and next friend BZ) v Paul Muthiku [2020] eKLR an appellate court will only interfere with the award of the trial court if it is inordinately so high or low as to represent an entirely erroneous estimate or it is based on some wrong legal principle or on a misapprehension of the evidence.
22. In assessing the damages, the trial magistrate considered not just the nature and extent of these injuries but also past awards for similar injuries. In Kensilver Express Limited v Nzangu (Civil Appeal E039 of 2021) [2022] KEHC 10331 (KLR) (20 July 2022) (Judgment) the court opined that;
“Notably, it must be understood that money can never compensate a person for the injuries sustained. It is merely an assessment of a sum of money that a court deems to be reasonable in the circumstances to assuage a person who has suffered an injury. However, this assessment must be reflective of the prevailing inflationary trends and is not without limits because a court must be guided by precedents.”
The trial magistrate considered the submissions by both parties where the plaintiff had proposed an award of Kshs. 1,500,000 and the 2nd Defendant had proposed and award of kshs. 500,000 and guided by the authorities cited by both parties the court found that an award of 1,000,000 would be sufficient. Further he found the liability of the defendants was 50%. The trial court also awarded special damages of Kshs. 2,300 which was pleaded for in the plaint and proved by way of receipts. This court therefore upholds the trial courts finding on quantum.
23. The upshot is that the appeal has no merit and is dismissed.
24. Each party to bear its own costs.
JUDGMENT, SIGNED DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2024
WENDY KAGENDO
JUDGE