1. This appeal emanates from the judgement and decree of Hon. A.K. Makoross, Senior Principal Magistrate delivered on 3rd October, 2024 in Tamu SPMCC No. E014 of 2022 Joshua Ogot Otieno v Ena Investment Limited & 2 others.
2. In the present appeal, the Appellant has continued to designate the Third Party before the trial court as “Third Party” in the appeal, rather than as “3rd Respondent,” as is procedurally required upon the filing of an appeal. In the circumstances, I shall henceforth refer to that party as the 3rd Respondent.
3. The grounds of appeal presented by the Appellant vide the memorandum of appeal dated 23rd October, 2024 upon which the Appellant seeks to upset the judgement and decree of the trial court are as follows:
i. THAT the learned trial Magistrate erred in law and in fact by finding that the Appellant was the beneficial owner of motor vehicle registration number KCG 051J Toyota Van the time of the alleged accident on the 13th day of June, 2022 along Muhoroni-Kipsitet road.
ii. THAT the learned trial Magistrate erred in law and in fact by overlooking the car sale agreement entered between the Appellant and the 3rd Respondent that was entered into on the 6th day of May, 2022, before the alleged accident that allegedly caused injuries to the 1st Respondent herein and entered a judgment against the Appellant against the weight of evidence adduced in court orally in court.
iii. THAT the learned trial Magistrate erred in law and in fact by solely relying on the motor vehicle copy of records done and produced by the 1st Respondent to make a finding that the Appellant was the one in control of motor vehicle registration number KCG 051J as at the time of the accident that allegedly caused injuries to the 1st Respondent.
iv. THAT the learned trial Magistrate erred in law and in fact by overlooking the evidence that was produced by the Appellant during the hearing.
v. THAT the learned trial Magistrate erred in law and in fact by expunging the bank statement showing that the 3rd Respondent had already fully paid the purchase price to the Appellant before the accident took place.
vi. THAT the learned trial Magistrate erred in law and in fact by finding the Appellant 100% liable whilst the property in goods of motor vehicle registration number KCG 051J had already passed to the 3rd Respondent and during the material day the said motor vehicle was in control of the 3rd Respondent’s agents.
vii. THAT the learned trial Magistrate erred in law and in fact by not considering the interlocutory judgment entered against the 3rd Respondent in its final judgment and instead proceeded as if there was none.
viii. THAT the trial court erred in law and in fact by finding the Appellant 100% liable of the accident whilst the issue of sale, control and possession of motor vehicle registration number KCG 051J was never controverted.
ix. THAT the learned trial Magistrate erred in law and in fact by ordering the Appellant to pay general damages of Ksh. 300,000/-, special damages of Kshs.1,990/-, costs of the suit and interest at court rates from the date of the judgment until payment in full.
x. THAT the learned trial Magistrate erred in law and in fact by not ordering the 3rd Respondent to indemnify the Appellant herein for the sums awarded to the 1st Respondent for general damages of Ksh.300,000/-, special damages of Ksh.1,990/-, costs of the suit and interest at court rates from the date of the judgment until payment in full.
4. The Appellant proposes that the appeal be allowed, that the judgment of the trial court be set aside and that this Honourable Court find that the 3rd Respondent was in control of motor vehicle registration KCG 051J at the time of the accident on 13th June, 2022 that occurred along Muhoroni–Kipsitet Road and is therefore 100% liable; alternatively, that the 3rd Respondent be ordered to indemnify the Appellant. The Appellant further proposes that he be awarded the costs of the appeal.
5. This being the first appellate court, I am required under Section 78 of the Civil Procedure Act and as was espoused in the case of Selle v Associated Motor Boat Co. Ltd [1969] E.A. 123 to re-assess, re-analyze and re-evaluate the evidence adduced in the trial court and draw my conclusions while bearing in mind that I did not see or hear the witnesses when they testified.
6. In Selle, Sir Clement De Lestang observed that:
“This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.
However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
7. The duty of the first appellate court was also discussed by the Court of Appeal for East Africa in the case of Peters v Sunday Post Limited [1958] EA 424 in which it was held that the appropriate standard of review established in cases of appeal can be stated in three complementary principles:
“i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and
iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”
8. I will proceed to re-assess, re-analyze and re-evaluate the evidence adduced before the trial court and reach my own findings while abiding by the principles set in Selle and in Peters v Sunday Post. While doing so. I will limit myself to the issue of quantum.
9. The matter before the trial court, based on tortious liability arising out of a road traffic accident that is said to have occurred on 13th June, 2022 in which the 1st Respondent (the Plaintiff before the trial court) sustained bodily injuries.
10. The 1st Respondent sued the Appellant and the 2nd Respondent (the 1st and 2nd Defendants respectively before the trial court) vide the plaint dated 17th October, 2022, seeking to recover special and general damages for the injuries sustained, claiming that the accident occurred due to the negligence of the Appellant and the 2nd Respondent and/or their servants, employees and/or agents.
11. The 1st Respondent pleaded that the Appellant and the 2nd Respondent were at the time material to the suit the registered and/or legal owners of motor vehicle registration number KCG 051J, that was involved in the said accident and in which the 1st Respondent was travelling as a fare paying passenger.
12. The 1st Respondent averred that on 13th June, 2022, he was lawfully travelling in the aforesaid motor vehicle when, at the Muhoroni–Kipsitet–Kisumu junction area, the vehicle was carelessly and negligently driven and/or managed by its driver, who was the agent, employee and/or servant of the Appellant and the 2nd Respondent. As a result, the vehicle was involved in a self-involving accident, thereby occasioning bodily injuries to the 1st Respondent.
13. The 1st Respondent pleaded the following particulars of negligence as being attributable to the Appellant and the 2nd Respondent:
a. Driving too fast in the circumstances.
b. Driving recklessly and without due regard to other road users.
c. Failing to slow down, swerve, stop or in any other manner act as to stop or avoid the accident.
d. Failing to have regard for other road users or to give any sufficient regard to other road users on the said road particularly to the 1st Respondent.
e. Failing to maintain control of the motor vehicle while driving the same.
f. Failing to comply with the Traffic Regulations and the Highway Code.
14. The 1st Respondent pleaded listed the following particulars of injuries and particulars of special damages in his pleading:
Particulars of injuries:
a. Mild head bruises.
b. Left shoulder pain.
c. Distal clavicular fracture.
d. Mild chest pain.
e. Left upper limb weakness and pain with limited range of motion due to distal 2/3 clavicular fracture.
f. Left limb has mild pain at distal 1/3 of tibia.
Particulars of special damages:
1. Search on motor vehicle – Ksh. 550/-.
2. Medical expenses – Ksh.1,300/-.
3. Postage fees – Ksh. 140/-.
Total – Ksh.1,990/.
15. The Appellant resisted the claim and to that end filed a statement of defence dated 21st September, 2023.
16. In its defence, the Appellant denied ownership of the aforesaid motor vehicle and further denied it or its driver or agent were in possession or control of the said vehicle at the time of the accident, stating that it had already sold the vehicle to the 3rd Respondent, who had acquired full beneficial and equitable interest, though the transfer had not yet been effected at that time.
17. The Appellant further contended that the 3rd Respondent later transferred the vehicle into his name with the NTSA and became its registered owner.
18. Consequently, the Appellant maintained that it was neither the beneficial nor equitable owner of the vehicle, described itself as a stranger to the allegations of the accident and denied receiving any demand notices in respect of the suit. The Appellant denied liability, direct or vicarious.
19. The 2nd Respondent, although served with the plaint and summons to enter appearance, failed to enter appearance and interlocutory judgement was at the request of the 1st Respondent entered against it on 26th January, 2023.
20. The record of the trial court bears it that the Appellant sought and was granted leave to join the 3rd Respondent as a Third Party. However, the 3rd Appellant did not file any response despite being served with the requisite third-party notice.
21. The 1st Respondent testified before the trial court as PW1 and adopted the contents of his witness statement dated 17th October, 2022 as his evidence-in-chief.
22. In his brief statement, the 1st Respondent stated that on 13th June, 2021, he was aboard motor vehicle registration number KCG 051J as a lawful passenger, when the same was involved in a self-involving accident at Muhoroni-Kipsitet-Kisumu junction that resulted from the negligence and/or carelessness of its driver. As a result of the accident, the 1st Respondent sustained bodily injuries and was treated at Muhoroni and Nandi County Hospitals.
23. The 1st Respondent produced the following documents in support of his case:
- Hospital referral form.
- Outpatient appointment card.
- Xray images.
- P3 form.
- Police abstract.
- Motor vehicle copy of records.
- Demand letter/statutory notice dated 6th September, 2022
- Receipts in support of special damages.
24. Upon cross-examination, the 1st Respondent stated that he had seen the agreement dated 6th May 2022 for the sale of the vehicle, executed by the Appellant as vendor and the 3rd Respondent as purchaser. However, he could not vouch for its authenticity, as he was unaware of the sale transaction as the vehicle remained registered in the name of the Appellant at the material time.
25. The Appellant called its Chief Executive Officer, Richard Mogire, as its witness (DW1), who adopted the contents of his statement dated 18th January, 2024 as his evidence in chief.
26. In his statement, DW1 stated that although the Appellant was the registered owner of motor vehicle registration number KCG 051J as at 13th June, 2022 when the accident occured, it had sold the vehicle to the 3rd Respondent pursuant to a sale agreement dated 6th May, 2022. He further stated that the Appellant successfully joined the 3rd Respondent as a Third Party in the proceedings before the trial court, but the 3rd Respondent did not participate in the proceedings.
27. The witness testified that under the sale agreement, the beneficial interest in the vehicle was transferred to the 3rd Respondent and that it was the 3rd Respondent who failed in his duty to formally effect the transfer of registration into his name at the material time. He added that the transfer was subsequently completed.
28. The Appellant, through the evidence of DW1, therefore denied both direct and vicarious liability for the accident of 13th June, 2022, maintaining that it was neither in possession nor in control of the vehicle at the time the accident occurred.
29. The witness produced the following documents in support of the Appellant’s case:
- Copy of sale agreement dated 6th May, 2022.
- Motor vehicle copy of records as at 18th September, 2023 indicating the 3rd Respondent as the registered owner.
30. Among the issues the learned trial Magistrate set out to determine in his judgement of 3rd October, 2024, was that of liability between the parties. On that issue, he rendered himself as follows:
“31. The real challenge in the resolution of this case lies in determining who was in control of the said motor vehicle at the time of the accident and therefore, by extension, who should be held liable.
32. As already captured, the Plaintiff, relying of motor vehicle copy or records (Pexh.6), insists that it was the 1st Defendant, because they were the registered owners of the accident motor vehicle as at the time of the accident, whilst the 1st Defendant, relying on a sale agreement dated 6/5/2022 (Dexh.1) contends that the third party herein, being the buyer of the accident vehicle, was the one in control of the vehicle.
33. I have carefully gone through the documents produced by the parties herein and do find as follows: First, that the copy of motor vehicle records produced as Pexh.6 and Dexh.2 indeed show that the accident vehicle was, in fact, registered in the name of the 1st Defendant on the day the accident occurred.
34. Secondly, that the copy of sale agreement dated 6/5/2022 (Dexh.1), shows that the 1st Defendant and the third party herein did indeed enter into an agreement for the sale of the accident motor vehicle and that the consideration for the said motor vehicle would be Ksh.1,050,000/-.
35. Third, that the clause on the said agreement which ought to have included the sums received by the seller (1st Defendant) is left blank.
36. Fourth, that the clause immediately following the blank reads thus:
“that the seller shall surrender the motor vehicle to the buyer as it is when the buyer has cleared all the payments to the last installment.”
37. And, finally, that the final clause (before execution) reads:
“After full payment, for the purpose of transfer and execution of this agreement the parties shall promptly proceed to complete the relevant TIMS digital processes in accordance with NTSA regulations at the buyer’s cost.”
38. From the above it is deducible that whereas there is evidence of an intended sale between the 1st Defendant and the third party, the agreement is not, at all, clear on whether any payments were made on the date of execution or when or how the full consideration was to be realized by the 1st Defendant. What is discernible from the agreement, however is that the agreement contemplated payments by installments and, further, that a transfer of control and ownership would only shift after full payment of the purchase consideration.
39. That being so, I find myself in agreement with the Plaintiff that unless and until the 1st Defendant demonstrated that the full purchase consideration had indeed been made on the date of purchase of the accident vehicle or soon thereafter, but before the accident date, and, therefore, that the property and control in the accident motor-vehicle had passed onto the third party, the court can only presume that the 1st Defendant were not only the owners of the accident motor vehicle but also the ones in control thereof.
40. In finding as above, I fully associate myself with the decision in Leonard Mungania v Jessikay Enterprises & Another [2009] eKLR (cited by the Plaintiff) where the court in dealing with a similar situation had this to say:
“What is the law as regards title to and ownership of motor vehicles. Section 8 of the Traffic Act provides 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 proved by producing documents from the registrar of motor vehicles that as at 20th April 2005 when the accident occurred, the 1st Respondent was still the registered owner of the subject motor vehicle. Accordingly, and in terms of Section 8 aforesaid, it was deemed to be the owner of the motor vehicle. The 1st Respondent in a bid to disown the ownership of the vehicle produced in evidence sale and hire purchase agreement dated 16th July 2004 showing that the said motor vehicle was in fact sold to a third party who took immediate possession thereof as per the delivery note dated the same date. Further the 1st Respondent through a letter dated 20th August 2005 informed the registrar of motor vehicles of the sale. To conclusively cement its case, the 1st Respondent produced a copy of a duly signed transfer form thereby demonstrating categorically, the ownership of the said vehicle had changed hands by 20th April 2005. By production of those documents, it is the 1st Respondent’s contention it had been able to prove to the contrary as envisaged by Section 8 supra. However, I am unable to agree with this contention. From the sale and higher purchase agreement, it is evident that there was a balance of the purchase price of Kshs.480/= to be repaid to the 1st Respondent by the purchaser over a period of 10 months commencing 1st September 2004. Ten months from 1st September 2004 would effectively end on 1st June 2005. The accident occurred on 20th April 2005 before the purchaser had completed payment of the full purchase price. Howe could have the purchaser have affected the transfer of the vehicle into his name when there was an outstanding balance of the purchase price payable to the 1st Respondent.” I doubt that that was possible. I am fortified in this holding by condition 3 of the sales and hire purchase agreement which is to the effect that “the vendor to hand over the registration book (logbook) and transfer after payment in full of the purchase price, and any interest cost.”
That condition amply testifies to the fact that the purchaser could only have transferred the vehicle into his name once the full purchase price had been paid. As at the time of the accident and assuming that the purchaser had been regular in the payments of the monthly installments of Kshs.48,000/= with effect from 1st September 2004, he still had two more installments to go. I would imagine that that was the reason why the motor vehicle was still perhaps registered in the names of the 1st Respondent. I have a ringing suspicion that all the documents tendered in evidence showing that the 1st Respondent had surrendered the motor vehicle to the purchaser were generated by the 1st Respondent purposely to defeat the Appellant’s claim. In any event, being a higher purchase agreement, it is common knowledge that the property, the subject of the higher purchase agreement ordinarily remains in the names of the vendor until the hire purchase instalments are fully paid. This would seem to be the case here. Accordingly, as at the time of the accident, the vehicle, in law, still belonged to the 1st Respondent. In my view therefore, the property in the vehicle had not passed onto the purported purchaser. In support of this contention, I would refer to the Section 9 of the Traffic Act again. In a nutshell it provides that if a vehicle is transferred from a registered owner, it shall not be used on the road for more than 14 days after the transfer unless the new owner is registered as the owner thereof. From the evidence on record and which the 1st Respondent wishes the court to believe had the vehicle been sold on 16th July 2004 the same could have been on the road at the very latest 30th July 2004. Yet the vehicle was on the road as late as at the time of the accident clearly in breach of the law.”
31. With that, the learned trial Magistrate reached the finding that the Appellant was 100% liable.
32. The instant appeal, from the memorandum of appeal, is squarely premised on the same issue of liability. The appeal was canvassed by way of written submissions and only the Appellant and the 1st Respondent participated.
33. It is instructive from a perusal of the trial court’s record that the Appellant did not file a formal request for interlocutory judgement to be entered against the Third Party.
34. In its submissions, the Appellant states that the trial court erred both in law and in fact by expunging from the record certified bank statements, which were filed well after the 1st Respondent had closed his case, which the Appellant contends showed that the purchase price for motor vehicle registration number KCG 051J Toyota Van had been fully paid by the 3rd Respondent before the accident of 13th June, 2022.
35. The Appellant contends that the bank statements, certified by Equity Bank, demonstrated that payments of Ksh.500,000/- and Ksh.800,000/- were made on 17th May, 2022 and 21st May, 2022 respectively, thereby completing the purchase prior to the accident. It argues that relevance is the primary test of admissibility and relies on Nicholas Randa Owano Ombija v Judges and Magistrates Vetting Board [2015] eKLR, for the proposition that relevant evidence is admissible regardless of the manner in which it was obtained.
36. The Appellant further relies on John Muriithi & 8 others v Registered Trustees of Sisters of Mercy (Kenya) t/a “The Mater Misericordiae Hospital” & another [2018] eKLR to submit that illegally obtained evidence is admissible in civil proceedings so long as it is relevant and does not affect the fairness of the trial.
37. The Appellant further submits that even in the absence of the bank statements, the sale agreement dated 6th May, 2022, which was produced at trial, sufficiently proved that ownership and possession of the motor vehicle had passed to the 3rd Respondent prior to the accident. It contends that the learned trial Magistrate reached inconsistent findings in two separate suits arising from the same accident, as in another matter (Civil Case No. E064 of 2022) the same court relied on the bank statement to conclude that the Appellant had divested ownership. The Appellant argues that such divergent outcomes on similar facts demonstrate error and occasion a miscarriage of justice.
38. On ownership, the Appellant submits that the 1st Respondent failed to prove that it was the beneficial owner or in control of the motor vehicle at the time of the accident. It relies on Section 8 of the Traffic Act, which provides that registration is only prima facie evidence of ownership unless the contrary is proved.
39. Citing Nancy Ayiemba Ngaira v Abdi Ali C.A No. 107 of 2008 [2010] eKLR, the Appellant argues that registration is not conclusive proof of ownership and that actual, beneficial or possessory ownership may lie elsewhere. It maintains that it produced a valid sale agreement and evidence of payment, thereby rebutting the presumption of ownership. Further reliance is placed on the authority of Samuel Mukunya Kamunge v John Mwangi Kamuru Civil Appeal No. 34 of 2002 for the position that a search certificate alone is not the only proof of ownership, and on Securicor Kenya Limited v Kyumba Holdings Limited [2005] 1 KLR 748 to demonstrate that actual possession and control may determine true ownership notwithstanding registration.
40. The Appellant also invokes Section 9 of the Traffic Act and Section 20(a) of the Sale of Goods Act, arguing that property in specific goods passes upon execution of an unconditional contract, unless otherwise intended. It contends that upon payment and execution of the agreement, beneficial ownership vested in the 3rd Respondent and that the electronic transfer process had been initiated. The Appellant relies on Nelson Yabesh Bichanga v Mary Omari KSM Civil Appeal No. 43 of 2006 (UR) to emphasize that production of a valid sale agreement is critical in establishing transfer of ownership, even where registration records have not yet been updated.
41. On liability, the Appellant submits that having sold the motor vehicle prior to the accident and having joined the purchaser as the 3rd Respondent through third party proceedings, it should not bear any liability. It argues that it neither controlled nor directed the vehicle or its driver at the material time and had no insurable interest, as evidenced by the police abstract indicating that the vehicle was insured under a policy in the name of the 3rd Respondent. Consequently, it urges that the trial court erred in failing to order the 3rd Respondent to indemnify and compensate the 1st Respondent for the awarded general damages of Ksh.300,000/-, special damages of Ksh.1,990/-, costs and interest.
42. Finally, on costs, the Appellant submits that costs follow the event and argues that the 1st Respondent instituted the suit solely on the basis of an NTSA search without conducting due diligence on actual ownership. It contends that even after being notified of the transfer, the 1st Respondent failed to amend the pleadings to remove the Appellant from the proceedings and that therefore, the 1st Respondent should bear the costs of the appeal.
43. On his part, the 1st Respondent submits that the trial court did not err in law or in fact in expunging the further list of documents filed by the Appellant on 3rd July, 2024, which included bank statements from Equity Bank. He contends that the documents were filed after the Appellant had formally closed its case on 3rd May, 2024 and after submissions had been filed, without seeking or obtaining leave of the trial court.
44. The 1st Respondent further submits that the bank statements were never formally produced or tendered in evidence during the hearing. The 1st Respondent therefore argues that the trial court properly exercised its discretion in expunging the documents in order to preserve the integrity of the trial process.
45. The 1st Respondent submits that the Civil Procedure Rules require parties to file and serve all documents they intend to rely upon before trial and to produce evidence prior to closing their case, unless leave is granted. He submits that supplementary documents may only be admitted with leave of the court and before closure of the case.
46. In support of strict compliance with these procedural requirements, he cites NSG v SCG [2014] eKLR, where the High Court emphasized that pre-trial disclosure is intended to prevent ambush and to ensure fairness by affording the opposing party adequate opportunity to challenge evidence.
47. The 1st Respondent further submits that admitting the bank statements after closure of the case would have prejudiced him by denying him the opportunity to cross-examine witnesses on the document or to object to its admissibility. He contends that such late admission would infringe upon the right to a fair hearing under Article 50 of the Constitution. He also relies on the case of Humphrey Njuru Karanja v John Mwangi King’ori & Another [2013] eKLR for the proposition that compliance with the rules on filing and serving witness statements and documents is mandatory and on Neeraj Jayatilaiya Kalaiya v Cheruiyot & 5 others [2022] eKLR, where the court held that documents filed out of time without leave are nullities incapable of being cured.
48. On the issue of liability, the 1st Respondent submits that the Appellant was correctly held to be 100% liable for the accident, as it was the registered owner of the motor vehicle as at 13th June, 2022, the date of the accident. He relies on the copy of records obtained on 6th September, 2022 showing that the vehicle remained registered in the Appellant’s name. He argues that the Appellant’s subsequent search conducted on 18th September, 2023, over one year after the accident, does not displace the statutory presumption of ownership at the material time.
49. The 1st Respondent contends that although the Appellant relied on a sale agreement dated 6th May, 2022 allegedly transferring the vehicle to the 3rd Respondent, there was no evidence of full payment of the purchase price or proof of transfer prior to the accident and that under Section 8 of the Traffic Act, the person in whose name a vehicle is registered is deemed to be the owner unless the contrary is proved.
50. In support of this position, the 1st Respondent cites the case of Leonard Mungania v Jessikay Enterprises & Another [2009] eKLR, where the court held that ownership does not pass where the purchase price has not been fully paid and transfer has not been effected, and that the registered owner remains liable at the time of the accident.
51. The 1st Respondent further submits that the accident was self-involving and being a fare-paying passenger, he bore no contributory negligence. He relies on the authority Naftaly Muiruri Macharia v Samuel Maina & Another [2018] eKLR, where the court held that a passenger in a self-involving accident cannot be blamed and that the driver is wholly liable, with the registered owner being vicariously liable.
52. Regarding whether the trial court ought to have ordered the 3rd Respondent to compensate the 1st Respondent, he submits that there was no evidence demonstrating that the 3rd Respondent had taken possession, control or ownership of the motor vehicle at the time of the accident. Since ownershi
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2. In the present appeal, the Appellant has continued to designate the Third Party before the trial court as “Third Party” in the appeal, rather than as “3rd Respondent,” as is procedurally required upon the filing of an appeal. In the circumstances, I shall henceforth refer to that party as the 3rd Respondent.
3. The grounds of appeal presented by the Appellant vide the memorandum of appeal dated 23rd October, 2024 upon which the Appellant seeks to upset the judgement and decree of the trial court are as follows:
i. THAT the learned trial Magistrate erred in law and in fact by finding that the Appellant was the beneficial owner of motor vehicle registration number KCG 051J Toyota Van the time of the alleged accident on the 13th day of June, 2022 along Muhoroni-Kipsitet road.
ii. THAT the learned trial Magistrate erred in law and in fact by overlooking the car sale agreement entered between the Appellant and the 3rd Respondent that was entered into on the 6th day of May, 2022, before the alleged accident that allegedly caused injuries to the 1st Respondent herein and entered a judgment against the Appellant against the weight of evidence adduced in court orally in court.
iii. THAT the learned trial Magistrate erred in law and in fact by solely relying on the motor vehicle copy of records done and produced by the 1st Respondent to make a finding that the Appellant was the one in control of motor vehicle registration number KCG 051J as at the time of the accident that allegedly caused injuries to the 1st Respondent.
iv. THAT the learned trial Magistrate erred in law and in fact by overlooking the evidence that was produced by the Appellant during the hearing.
v. THAT the learned trial Magistrate erred in law and in fact by expunging the bank statement showing that the 3rd Respondent had already fully paid the purchase price to the Appellant before the accident took place.
vi. THAT the learned trial Magistrate erred in law and in fact by finding the Appellant 100% liable whilst the property in goods of motor vehicle registration number KCG 051J had already passed to the 3rd Respondent and during the material day the said motor vehicle was in control of the 3rd Respondent’s agents.
vii. THAT the learned trial Magistrate erred in law and in fact by not considering the interlocutory judgment entered against the 3rd Respondent in its final judgment and instead proceeded as if there was none.
viii. THAT the trial court erred in law and in fact by finding the Appellant 100% liable of the accident whilst the issue of sale, control and possession of motor vehicle registration number KCG 051J was never controverted.
ix. THAT the learned trial Magistrate erred in law and in fact by ordering the Appellant to pay general damages of Ksh. 300,000/-, special damages of Kshs.1,990/-, costs of the suit and interest at court rates from the date of the judgment until payment in full.
x. THAT the learned trial Magistrate erred in law and in fact by not ordering the 3rd Respondent to indemnify the Appellant herein for the sums awarded to the 1st Respondent for general damages of Ksh.300,000/-, special damages of Ksh.1,990/-, costs of the suit and interest at court rates from the date of the judgment until payment in full.
4. The Appellant proposes that the appeal be allowed, that the judgment of the trial court be set aside and that this Honourable Court find that the 3rd Respondent was in control of motor vehicle registration KCG 051J at the time of the accident on 13th June, 2022 that occurred along Muhoroni–Kipsitet Road and is therefore 100% liable; alternatively, that the 3rd Respondent be ordered to indemnify the Appellant. The Appellant further proposes that he be awarded the costs of the appeal.
5. This being the first appellate court, I am required under Section 78 of the Civil Procedure Act and as was espoused in the case of Selle v Associated Motor Boat Co. Ltd [1969] E.A. 123 to re-assess, re-analyze and re-evaluate the evidence adduced in the trial court and draw my conclusions while bearing in mind that I did not see or hear the witnesses when they testified.
6. In Selle, Sir Clement De Lestang observed that:
“This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.
However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
7. The duty of the first appellate court was also discussed by the Court of Appeal for East Africa in the case of Peters v Sunday Post Limited [1958] EA 424 in which it was held that the appropriate standard of review established in cases of appeal can be stated in three complementary principles:
“i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and
iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”
8. I will proceed to re-assess, re-analyze and re-evaluate the evidence adduced before the trial court and reach my own findings while abiding by the principles set in Selle and in Peters v Sunday Post. While doing so. I will limit myself to the issue of quantum.
9. The matter before the trial court, based on tortious liability arising out of a road traffic accident that is said to have occurred on 13th June, 2022 in which the 1st Respondent (the Plaintiff before the trial court) sustained bodily injuries.
10. The 1st Respondent sued the Appellant and the 2nd Respondent (the 1st and 2nd Defendants respectively before the trial court) vide the plaint dated 17th October, 2022, seeking to recover special and general damages for the injuries sustained, claiming that the accident occurred due to the negligence of the Appellant and the 2nd Respondent and/or their servants, employees and/or agents.
11. The 1st Respondent pleaded that the Appellant and the 2nd Respondent were at the time material to the suit the registered and/or legal owners of motor vehicle registration number KCG 051J, that was involved in the said accident and in which the 1st Respondent was travelling as a fare paying passenger.
12. The 1st Respondent averred that on 13th June, 2022, he was lawfully travelling in the aforesaid motor vehicle when, at the Muhoroni–Kipsitet–Kisumu junction area, the vehicle was carelessly and negligently driven and/or managed by its driver, who was the agent, employee and/or servant of the Appellant and the 2nd Respondent. As a result, the vehicle was involved in a self-involving accident, thereby occasioning bodily injuries to the 1st Respondent.
13. The 1st Respondent pleaded the following particulars of negligence as being attributable to the Appellant and the 2nd Respondent:
a. Driving too fast in the circumstances.
b. Driving recklessly and without due regard to other road users.
c. Failing to slow down, swerve, stop or in any other manner act as to stop or avoid the accident.
d. Failing to have regard for other road users or to give any sufficient regard to other road users on the said road particularly to the 1st Respondent.
e. Failing to maintain control of the motor vehicle while driving the same.
f. Failing to comply with the Traffic Regulations and the Highway Code.
14. The 1st Respondent pleaded listed the following particulars of injuries and particulars of special damages in his pleading:
Particulars of injuries:
a. Mild head bruises.
b. Left shoulder pain.
c. Distal clavicular fracture.
d. Mild chest pain.
e. Left upper limb weakness and pain with limited range of motion due to distal 2/3 clavicular fracture.
f. Left limb has mild pain at distal 1/3 of tibia.
Particulars of special damages:
1. Search on motor vehicle – Ksh. 550/-.
2. Medical expenses – Ksh.1,300/-.
3. Postage fees – Ksh. 140/-.
Total – Ksh.1,990/.
15. The Appellant resisted the claim and to that end filed a statement of defence dated 21st September, 2023.
16. In its defence, the Appellant denied ownership of the aforesaid motor vehicle and further denied it or its driver or agent were in possession or control of the said vehicle at the time of the accident, stating that it had already sold the vehicle to the 3rd Respondent, who had acquired full beneficial and equitable interest, though the transfer had not yet been effected at that time.
17. The Appellant further contended that the 3rd Respondent later transferred the vehicle into his name with the NTSA and became its registered owner.
18. Consequently, the Appellant maintained that it was neither the beneficial nor equitable owner of the vehicle, described itself as a stranger to the allegations of the accident and denied receiving any demand notices in respect of the suit. The Appellant denied liability, direct or vicarious.
19. The 2nd Respondent, although served with the plaint and summons to enter appearance, failed to enter appearance and interlocutory judgement was at the request of the 1st Respondent entered against it on 26th January, 2023.
20. The record of the trial court bears it that the Appellant sought and was granted leave to join the 3rd Respondent as a Third Party. However, the 3rd Appellant did not file any response despite being served with the requisite third-party notice.
21. The 1st Respondent testified before the trial court as PW1 and adopted the contents of his witness statement dated 17th October, 2022 as his evidence-in-chief.
22. In his brief statement, the 1st Respondent stated that on 13th June, 2021, he was aboard motor vehicle registration number KCG 051J as a lawful passenger, when the same was involved in a self-involving accident at Muhoroni-Kipsitet-Kisumu junction that resulted from the negligence and/or carelessness of its driver. As a result of the accident, the 1st Respondent sustained bodily injuries and was treated at Muhoroni and Nandi County Hospitals.
23. The 1st Respondent produced the following documents in support of his case:
- Hospital referral form.
- Outpatient appointment card.
- Xray images.
- P3 form.
- Police abstract.
- Motor vehicle copy of records.
- Demand letter/statutory notice dated 6th September, 2022
- Receipts in support of special damages.
24. Upon cross-examination, the 1st Respondent stated that he had seen the agreement dated 6th May 2022 for the sale of the vehicle, executed by the Appellant as vendor and the 3rd Respondent as purchaser. However, he could not vouch for its authenticity, as he was unaware of the sale transaction as the vehicle remained registered in the name of the Appellant at the material time.
25. The Appellant called its Chief Executive Officer, Richard Mogire, as its witness (DW1), who adopted the contents of his statement dated 18th January, 2024 as his evidence in chief.
26. In his statement, DW1 stated that although the Appellant was the registered owner of motor vehicle registration number KCG 051J as at 13th June, 2022 when the accident occured, it had sold the vehicle to the 3rd Respondent pursuant to a sale agreement dated 6th May, 2022. He further stated that the Appellant successfully joined the 3rd Respondent as a Third Party in the proceedings before the trial court, but the 3rd Respondent did not participate in the proceedings.
27. The witness testified that under the sale agreement, the beneficial interest in the vehicle was transferred to the 3rd Respondent and that it was the 3rd Respondent who failed in his duty to formally effect the transfer of registration into his name at the material time. He added that the transfer was subsequently completed.
28. The Appellant, through the evidence of DW1, therefore denied both direct and vicarious liability for the accident of 13th June, 2022, maintaining that it was neither in possession nor in control of the vehicle at the time the accident occurred.
29. The witness produced the following documents in support of the Appellant’s case:
- Copy of sale agreement dated 6th May, 2022.
- Motor vehicle copy of records as at 18th September, 2023 indicating the 3rd Respondent as the registered owner.
30. Among the issues the learned trial Magistrate set out to determine in his judgement of 3rd October, 2024, was that of liability between the parties. On that issue, he rendered himself as follows:
“31. The real challenge in the resolution of this case lies in determining who was in control of the said motor vehicle at the time of the accident and therefore, by extension, who should be held liable.
32. As already captured, the Plaintiff, relying of motor vehicle copy or records (Pexh.6), insists that it was the 1st Defendant, because they were the registered owners of the accident motor vehicle as at the time of the accident, whilst the 1st Defendant, relying on a sale agreement dated 6/5/2022 (Dexh.1) contends that the third party herein, being the buyer of the accident vehicle, was the one in control of the vehicle.
33. I have carefully gone through the documents produced by the parties herein and do find as follows: First, that the copy of motor vehicle records produced as Pexh.6 and Dexh.2 indeed show that the accident vehicle was, in fact, registered in the name of the 1st Defendant on the day the accident occurred.
34. Secondly, that the copy of sale agreement dated 6/5/2022 (Dexh.1), shows that the 1st Defendant and the third party herein did indeed enter into an agreement for the sale of the accident motor vehicle and that the consideration for the said motor vehicle would be Ksh.1,050,000/-.
35. Third, that the clause on the said agreement which ought to have included the sums received by the seller (1st Defendant) is left blank.
36. Fourth, that the clause immediately following the blank reads thus:
“that the seller shall surrender the motor vehicle to the buyer as it is when the buyer has cleared all the payments to the last installment.”
37. And, finally, that the final clause (before execution) reads:
“After full payment, for the purpose of transfer and execution of this agreement the parties shall promptly proceed to complete the relevant TIMS digital processes in accordance with NTSA regulations at the buyer’s cost.”
38. From the above it is deducible that whereas there is evidence of an intended sale between the 1st Defendant and the third party, the agreement is not, at all, clear on whether any payments were made on the date of execution or when or how the full consideration was to be realized by the 1st Defendant. What is discernible from the agreement, however is that the agreement contemplated payments by installments and, further, that a transfer of control and ownership would only shift after full payment of the purchase consideration.
39. That being so, I find myself in agreement with the Plaintiff that unless and until the 1st Defendant demonstrated that the full purchase consideration had indeed been made on the date of purchase of the accident vehicle or soon thereafter, but before the accident date, and, therefore, that the property and control in the accident motor-vehicle had passed onto the third party, the court can only presume that the 1st Defendant were not only the owners of the accident motor vehicle but also the ones in control thereof.
40. In finding as above, I fully associate myself with the decision in Leonard Mungania v Jessikay Enterprises & Another [2009] eKLR (cited by the Plaintiff) where the court in dealing with a similar situation had this to say:
“What is the law as regards title to and ownership of motor vehicles. Section 8 of the Traffic Act provides 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 proved by producing documents from the registrar of motor vehicles that as at 20th April 2005 when the accident occurred, the 1st Respondent was still the registered owner of the subject motor vehicle. Accordingly, and in terms of Section 8 aforesaid, it was deemed to be the owner of the motor vehicle. The 1st Respondent in a bid to disown the ownership of the vehicle produced in evidence sale and hire purchase agreement dated 16th July 2004 showing that the said motor vehicle was in fact sold to a third party who took immediate possession thereof as per the delivery note dated the same date. Further the 1st Respondent through a letter dated 20th August 2005 informed the registrar of motor vehicles of the sale. To conclusively cement its case, the 1st Respondent produced a copy of a duly signed transfer form thereby demonstrating categorically, the ownership of the said vehicle had changed hands by 20th April 2005. By production of those documents, it is the 1st Respondent’s contention it had been able to prove to the contrary as envisaged by Section 8 supra. However, I am unable to agree with this contention. From the sale and higher purchase agreement, it is evident that there was a balance of the purchase price of Kshs.480/= to be repaid to the 1st Respondent by the purchaser over a period of 10 months commencing 1st September 2004. Ten months from 1st September 2004 would effectively end on 1st June 2005. The accident occurred on 20th April 2005 before the purchaser had completed payment of the full purchase price. Howe could have the purchaser have affected the transfer of the vehicle into his name when there was an outstanding balance of the purchase price payable to the 1st Respondent.” I doubt that that was possible. I am fortified in this holding by condition 3 of the sales and hire purchase agreement which is to the effect that “the vendor to hand over the registration book (logbook) and transfer after payment in full of the purchase price, and any interest cost.”
That condition amply testifies to the fact that the purchaser could only have transferred the vehicle into his name once the full purchase price had been paid. As at the time of the accident and assuming that the purchaser had been regular in the payments of the monthly installments of Kshs.48,000/= with effect from 1st September 2004, he still had two more installments to go. I would imagine that that was the reason why the motor vehicle was still perhaps registered in the names of the 1st Respondent. I have a ringing suspicion that all the documents tendered in evidence showing that the 1st Respondent had surrendered the motor vehicle to the purchaser were generated by the 1st Respondent purposely to defeat the Appellant’s claim. In any event, being a higher purchase agreement, it is common knowledge that the property, the subject of the higher purchase agreement ordinarily remains in the names of the vendor until the hire purchase instalments are fully paid. This would seem to be the case here. Accordingly, as at the time of the accident, the vehicle, in law, still belonged to the 1st Respondent. In my view therefore, the property in the vehicle had not passed onto the purported purchaser. In support of this contention, I would refer to the Section 9 of the Traffic Act again. In a nutshell it provides that if a vehicle is transferred from a registered owner, it shall not be used on the road for more than 14 days after the transfer unless the new owner is registered as the owner thereof. From the evidence on record and which the 1st Respondent wishes the court to believe had the vehicle been sold on 16th July 2004 the same could have been on the road at the very latest 30th July 2004. Yet the vehicle was on the road as late as at the time of the accident clearly in breach of the law.”
31. With that, the learned trial Magistrate reached the finding that the Appellant was 100% liable.
32. The instant appeal, from the memorandum of appeal, is squarely premised on the same issue of liability. The appeal was canvassed by way of written submissions and only the Appellant and the 1st Respondent participated.
33. It is instructive from a perusal of the trial court’s record that the Appellant did not file a formal request for interlocutory judgement to be entered against the Third Party.
34. In its submissions, the Appellant states that the trial court erred both in law and in fact by expunging from the record certified bank statements, which were filed well after the 1st Respondent had closed his case, which the Appellant contends showed that the purchase price for motor vehicle registration number KCG 051J Toyota Van had been fully paid by the 3rd Respondent before the accident of 13th June, 2022.
35. The Appellant contends that the bank statements, certified by Equity Bank, demonstrated that payments of Ksh.500,000/- and Ksh.800,000/- were made on 17th May, 2022 and 21st May, 2022 respectively, thereby completing the purchase prior to the accident. It argues that relevance is the primary test of admissibility and relies on Nicholas Randa Owano Ombija v Judges and Magistrates Vetting Board [2015] eKLR, for the proposition that relevant evidence is admissible regardless of the manner in which it was obtained.
36. The Appellant further relies on John Muriithi & 8 others v Registered Trustees of Sisters of Mercy (Kenya) t/a “The Mater Misericordiae Hospital” & another [2018] eKLR to submit that illegally obtained evidence is admissible in civil proceedings so long as it is relevant and does not affect the fairness of the trial.
37. The Appellant further submits that even in the absence of the bank statements, the sale agreement dated 6th May, 2022, which was produced at trial, sufficiently proved that ownership and possession of the motor vehicle had passed to the 3rd Respondent prior to the accident. It contends that the learned trial Magistrate reached inconsistent findings in two separate suits arising from the same accident, as in another matter (Civil Case No. E064 of 2022) the same court relied on the bank statement to conclude that the Appellant had divested ownership. The Appellant argues that such divergent outcomes on similar facts demonstrate error and occasion a miscarriage of justice.
38. On ownership, the Appellant submits that the 1st Respondent failed to prove that it was the beneficial owner or in control of the motor vehicle at the time of the accident. It relies on Section 8 of the Traffic Act, which provides that registration is only prima facie evidence of ownership unless the contrary is proved.
39. Citing Nancy Ayiemba Ngaira v Abdi Ali C.A No. 107 of 2008 [2010] eKLR, the Appellant argues that registration is not conclusive proof of ownership and that actual, beneficial or possessory ownership may lie elsewhere. It maintains that it produced a valid sale agreement and evidence of payment, thereby rebutting the presumption of ownership. Further reliance is placed on the authority of Samuel Mukunya Kamunge v John Mwangi Kamuru Civil Appeal No. 34 of 2002 for the position that a search certificate alone is not the only proof of ownership, and on Securicor Kenya Limited v Kyumba Holdings Limited [2005] 1 KLR 748 to demonstrate that actual possession and control may determine true ownership notwithstanding registration.
40. The Appellant also invokes Section 9 of the Traffic Act and Section 20(a) of the Sale of Goods Act, arguing that property in specific goods passes upon execution of an unconditional contract, unless otherwise intended. It contends that upon payment and execution of the agreement, beneficial ownership vested in the 3rd Respondent and that the electronic transfer process had been initiated. The Appellant relies on Nelson Yabesh Bichanga v Mary Omari KSM Civil Appeal No. 43 of 2006 (UR) to emphasize that production of a valid sale agreement is critical in establishing transfer of ownership, even where registration records have not yet been updated.
41. On liability, the Appellant submits that having sold the motor vehicle prior to the accident and having joined the purchaser as the 3rd Respondent through third party proceedings, it should not bear any liability. It argues that it neither controlled nor directed the vehicle or its driver at the material time and had no insurable interest, as evidenced by the police abstract indicating that the vehicle was insured under a policy in the name of the 3rd Respondent. Consequently, it urges that the trial court erred in failing to order the 3rd Respondent to indemnify and compensate the 1st Respondent for the awarded general damages of Ksh.300,000/-, special damages of Ksh.1,990/-, costs and interest.
42. Finally, on costs, the Appellant submits that costs follow the event and argues that the 1st Respondent instituted the suit solely on the basis of an NTSA search without conducting due diligence on actual ownership. It contends that even after being notified of the transfer, the 1st Respondent failed to amend the pleadings to remove the Appellant from the proceedings and that therefore, the 1st Respondent should bear the costs of the appeal.
43. On his part, the 1st Respondent submits that the trial court did not err in law or in fact in expunging the further list of documents filed by the Appellant on 3rd July, 2024, which included bank statements from Equity Bank. He contends that the documents were filed after the Appellant had formally closed its case on 3rd May, 2024 and after submissions had been filed, without seeking or obtaining leave of the trial court.
44. The 1st Respondent further submits that the bank statements were never formally produced or tendered in evidence during the hearing. The 1st Respondent therefore argues that the trial court properly exercised its discretion in expunging the documents in order to preserve the integrity of the trial process.
45. The 1st Respondent submits that the Civil Procedure Rules require parties to file and serve all documents they intend to rely upon before trial and to produce evidence prior to closing their case, unless leave is granted. He submits that supplementary documents may only be admitted with leave of the court and before closure of the case.
46. In support of strict compliance with these procedural requirements, he cites NSG v SCG [2014] eKLR, where the High Court emphasized that pre-trial disclosure is intended to prevent ambush and to ensure fairness by affording the opposing party adequate opportunity to challenge evidence.
47. The 1st Respondent further submits that admitting the bank statements after closure of the case would have prejudiced him by denying him the opportunity to cross-examine witnesses on the document or to object to its admissibility. He contends that such late admission would infringe upon the right to a fair hearing under Article 50 of the Constitution. He also relies on the case of Humphrey Njuru Karanja v John Mwangi King’ori & Another [2013] eKLR for the proposition that compliance with the rules on filing and serving witness statements and documents is mandatory and on Neeraj Jayatilaiya Kalaiya v Cheruiyot & 5 others [2022] eKLR, where the court held that documents filed out of time without leave are nullities incapable of being cured.
48. On the issue of liability, the 1st Respondent submits that the Appellant was correctly held to be 100% liable for the accident, as it was the registered owner of the motor vehicle as at 13th June, 2022, the date of the accident. He relies on the copy of records obtained on 6th September, 2022 showing that the vehicle remained registered in the Appellant’s name. He argues that the Appellant’s subsequent search conducted on 18th September, 2023, over one year after the accident, does not displace the statutory presumption of ownership at the material time.
49. The 1st Respondent contends that although the Appellant relied on a sale agreement dated 6th May, 2022 allegedly transferring the vehicle to the 3rd Respondent, there was no evidence of full payment of the purchase price or proof of transfer prior to the accident and that under Section 8 of the Traffic Act, the person in whose name a vehicle is registered is deemed to be the owner unless the contrary is proved.
50. In support of this position, the 1st Respondent cites the case of Leonard Mungania v Jessikay Enterprises & Another [2009] eKLR, where the court held that ownership does not pass where the purchase price has not been fully paid and transfer has not been effected, and that the registered owner remains liable at the time of the accident.
51. The 1st Respondent further submits that the accident was self-involving and being a fare-paying passenger, he bore no contributory negligence. He relies on the authority Naftaly Muiruri Macharia v Samuel Maina & Another [2018] eKLR, where the court held that a passenger in a self-involving accident cannot be blamed and that the driver is wholly liable, with the registered owner being vicariously liable.
52. Regarding whether the trial court ought to have ordered the 3rd Respondent to compensate the 1st Respondent, he submits that there was no evidence demonstrating that the 3rd Respondent had taken possession, control or ownership of the motor vehicle at the time of the accident. Since ownershi
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