Coram: Before Justice R. Nyakundi
M/s Kariah & Co Advocates
1. The brief background facts of this Appeal is that the Appellant who was the Plaintiff at the trial Court filed a Plaint dated 17th February 2023 seeking judgment against the Respondent who was the Defendant at the trial Court as follows: -
a. General damages
b. Special damages of Kshs. 21,080.00
c. Costs of this suit
d. Interest on a, b & c at Court rates
2. The facts as stated in the Plaint were that at all material times, the Defendant had been registered and or beneficial owner in control of Motor Cycle Registration Number 266H Honda. The Appellant averred that on or about 25th December 2022 at about 1138 Hours, the Plaintiff was a lawful pedestrian along Mudete-Gisambai road at Mudete Police Station Area when the Defendant, his rider, servant, employee and/or agent rode the said Motor cycle Registration Number Motor Cycle Registration Number 266H Honda so recklessly and carelessly in such a manner that the said motor cycle violently hit the Plaintiff from behind off the road thereby causing serious injuries to the Plaintiff. The Plaintiff also averred that the said accident was a result of negligence, carelessness and/or recklessness of the Defendant, his rider, servant, employee and/or agent of the said motor vehicle. The Plaintiff further averred that the particulars of injuries were: fracture of the right femur, laceration occipital region, blunt trauma on the back and bruises on both elbows.
3. The Defendant was duly served with the Plaint but failed to enter appearance or file a defense to the suit. Subsequently, interlocutory judgment was entered at the trial Court on 27th November 2024 against the Defendant pending formal proof hearing. The matter was set down for formal proof hearing and one witness was called to stand.
4. The Trial Court delivered its judgment on 14th day of May 2025 in the following way: -
In the foregoing, had the Court found the Plaintiff had proved his claim then judgment would have been entered in favour of the Plaintiff as against the
Defendant as follows;
Liability………………………………….100%
General damages………………………Kshs. 550,000/=
Special damages………………………..Kshs. 19,550/=
Total Award………………………………Kshs. 569,550/=
Costs of the suit and interest at Court rates from the date of judgment for general damages and from the date of filing for special damages until payment in full.
Having found that the Plaintiff has not proved his claim on liability the suit herein is dismissed with no costs awarded.
5. The Appellant being dissatisfied with the judgment of the Trial Magistrate at Vihiga delivered by Hon P. Karimi (RM) on 14/05/2025 in Vihiga PMCC E032 of 2023 appealed against liability of the said judgment vide a Memorandum of Appeal dated 20th May 2025 based on the following 3 grounds: -
a. The Trial Court erred in law and fact in dismissing the suit on account of the Appellant’s failure to prove the case against the Respondent when there was sufficient evidence to make her find otherwise.
b. The Trial Court erred in law and fact in misapprehending the law and facts placed before her and determined the suit beyond the standard of proof established in law for civil cases.
c. The Trial Magistrate occasioned a travesty of justice by misapprehending the law and facts placed before her by the Appellant, which was not even challenged and/or disputed.
6. The Appellant sought the following orders from the Memorandum of Appeal;
a. That the finding of the Trial Magistrate on dismissing the Appellant’s suit be set side, be reviewed and/or revised and/or be substituted with a judgment of this Honourable Court.
b. That this Honourable Court do make such further orders as it may deem fit.
c. That this appeal be allowed with costs to the Appellant.
7. The Appeal was canvassed by way of written submissions.
Appellant’s Written Submissions
8. The Appellant filed his written submissions dated 1st December 2025 through his Learned Counse Mr. Kariah. Learned Counsel for the Appellant Mr Kariah submitted that the trial Court misapprehended the law and evidence by dismissing the suit despite the Appellant providing sufficient and uncontroverted evidence on a balance of probabilities. He argued that this being a first appeal, the High Court has a primary role to re-evaluate, reassess and re-analyse the record to reach its own conclusions, a principle established in Abok James Odera T/A A.I Odera & Associates vs John Patrick Macharia T/A Macharia & Co. Advocates [2013] eKLR and Selle vs Associated Motor Boat Co. [1968] EA 123.
9. Counsel further contended that the trial Magistrate erroneously elevated the civil standard of proof to one beyond reasonable doubt, thereby shifting the burden of proof contrary to the Evidence Act. He relied on William Kabogo Gitau v George Thuo & 2 Others [2010] KEHC 4124 and Palace Investments Limited v Geoffrey Kariuki Mwenda & Another [2015] eKLR (citing Miller v Minister of Pensions [1947] 2 ALL ER 372) to emphasize that a case is determined by who is more likely than not to be right, noting that the Respondent offered no rebuttal or alternative narrative. Mr. Kariah further submitted that the trial Court erred in failing to recognize the evidentiary value of the police abstract, which identified the Respondent as the owner in control of the motorcycle registration number KMGB 266 Honda. He cited Joel Muga Opija v East African Sea Food Limited [2013] KECA 181 (KLR) and Kenya Alliance Insurance Co. Ltd vs Thomas Ochieng Apopa [2020] KEHC 3109 (KLR) to demonstrate that a police abstract is prima facie evidence of ownership that must be countered by the defense. Under Section 8 of the Traffic Act (Cap. 403) and Section 112 of the Evidence Act, the burden of proving ownership or control lay with the Respondent, as these facts were peculiarly within his knowledge. Counsel also pointed to Karugi & Another v Kabiya & 3 Others [1983] KECA 38 (KLR) to argue that when a defendant fails to call evidence, the Plaintiff’s burden of proof is lessened, making it easier to discharge if the evidence is credible.
10. Finally, Counsel argued that the trial Court's finding that the Respondent was not served with pleadings was factually incorrect and contradicted by the record, which included an Affidavit of Service and the Court's own endorsement of service for the purposes of a request for judgment. Citing William Muthee Muthiami v Bank of Baroda [2014] MUGA 591 (KLR), he maintained that a Court's decision must flow from the pleadings and evidence on record. Consequently, the Appellant urged the Court to set aside the dismissal, find the Respondent 100% liable for the accident and award Kshs.
2,500,000/= and special damages as originally sought in the trial suit.
Respondent’s Written Submissions
11. A look at the record indicates that the Respondent did not enter appearance in this Appeal. The Respondent did not also file submissions to dispose the Appeal. I will however determine the Appeal on its merits.
Analysis and Determination
12. I have carefully considered the Record of Appeal, the pleadings filed before the trial Court, the proceedings, the documentary evidence produced during the formal proof hearing, the judgment of the learned trial Magistrate, the Memorandum of Appeal and the written submissions filed by the Appellant. Since this is a first appeal, this Court is under a legal duty to subject the entire evidence on record to a fresh, exhaustive and independent evaluation, analyze it afresh and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify and must therefore give due allowance for that disadvantage. This Court’s the jurisdiction to review the evidence should be exercised with caution. In the cases of Peters Vs Sunday Post Limited [1958] EA 424, the Court therein rendered itself as follows: - “It is a strong thing for an appellate Court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate Court might have come to a different conclusion…”
13. It must be borne in mind that the Court does not have the advantage of seeing and hearing the witnesses as did the lower Court, yet it must reconsider the evidence, evaluate it itself and draw its own conclusions. In Selle & Another Vs Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus: -
“...this Court is not bound necessarily to accept the findings of fact by the Court below. An appeal to this Court ... is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that 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..."
12. Guided by the foregoing principles, this Court shall independently re-evaluate the evidence that was presented before the learned trial Magistrate and determine whether the findings made are supported by the law and the evidence on record.
Scope of the Appeal
13. From the Memorandum of Appeal dated 20th May 2025, the Appellant challenges only the learned trial Magistrate's finding on liability. Although three grounds of appeal have been raised, they revolve around one central issue, namely, that the learned trial Magistrate misapprehended both the law and the evidence and consequently erred in dismissing the Appellant's claim despite the evidence tendered during the formal proof hearing being uncontroverted. In particular, the Appellant contends that the learned trial
Magistrate erred by: -
a) Applying a standard of proof higher than that required in civil proceedings;
b) Failing to appreciate the legal effect of the Respondent's failure to enter appearance and file a defence.
c) Misdirecting herself on the evidential value of the police abstract and other documentary evidence produced before the Court.
d) Erroneously finding that ownership of the motorcycle blamed for the accident had not been established.
e) Consequently, dismissing the Appellant's suit notwithstanding that interlocutory judgment had already been entered against the Respondent. 14. The Respondent neither entered appearance in this appeal nor filed any submissions despite having been duly served. Nevertheless, this Court is under an obligation to determine the appeal on its merits. It is now settled that the failure by a respondent to participate in an appeal does not automatically entitle the appellant to succeed. The appellant must still demonstrate that the impugned decision is erroneous in law or fact. An appellate Court must therefore interrogate the record independently before interfering with the findings of the trial Court. Having considered the Memorandum of Appeal and the judgment appealed against, I am of the view that the issues arising for determination are as follows: -
a. Whether the learned trial Magistrate misdirected herself on the burden and standard of proof applicable during a formal proof hearing.
b. Whether the learned trial Magistrate erred in finding that the ownership or control of Motorcycle Registration Number KMGB 266H Honda had not been proved.
c. Whether the learned trial Magistrate properly appreciated the legal effect of the Respondent's failure to enter appearance, file a defence or adduce evidence in rebuttal.
d. Whether the dismissal of the Appellant's suit was justified in the circumstances of this case.
15. Before addressing the foregoing issues, it is necessary to restate the applicable legal principles governing the burden and standard of proof in civil proceedings, particularly where a matter proceeds by way of formal proof after interlocutory judgment has been entered. The resolution of those principles lies at the heart of this appeal because the learned trial Magistrate dismissed the Appellant's suit on the ground that liability had not been proved notwithstanding that the Respondent neither defended the suit nor challenged the evidence tendered by the Appellant.
Whether the Learned Trial Magistrate Erred on the Burden and Standard of Proof
16. The first issue for determination is whether the learned trial Magistrate properly appreciated the burden and standard of proof applicable in a civil claim that proceeds by way of formal proof after interlocutory judgment has been entered. The law regarding the burden of proof is principally contained in Sections 107, 108 and 109 of the Evidence Act. Section 107(1) provides that: -
“Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
17. Section 108 further provides that: -
“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”
18. Equally, Section 109 of the Evidence Act provides that: -
“The burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person.”
19. The foregoing provisions establish the general principle that the legal burden of proof rests upon the Plaintiff throughout the proceedings. However, the standard required in civil proceedings is not proof beyond reasonable doubt but proof on a balance of probabilities. The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 as follows: -
“In ordinary civil cases, a case may be determined in favour of a party who persuades the Court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”
20. The burden of proof is placed upon the appellant and is to be discharged on a balance of probabilities. Denning J. in Miller –vs- Minister of Pensions [1947] 2 ALL ER 372 discussing the burden of proof had this to say: -
“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
21. It therefore follows that although a Plaintiff bears the burden of proving his case, the evidential threshold is substantially lower than that applicable in criminal proceedings. The record shows that the Respondent neither entered appearance nor filed a statement of defence despite having been duly served with summons to enter appearance. Consequently, upon the Appellant's request, interlocutory judgment was regularly entered against the Respondent on 27th November 2024 and the matter proceeded for formal proof. The legal effect of interlocutory judgment in a claim founded on negligence is that although liability must still be established through evidence, the defendant loses the opportunity to traverse the pleaded facts unless leave is obtained to set aside the interlocutory judgment. The Plaintiff is nevertheless required to adduce credible evidence to satisfy the Court that the claim is proved on a balance of probabilities.
22. During the formal proof hearing, the Appellant testified as PW1 and adopted his witness statement as part of his evidence. He also produced documentary evidence without any objection. These included: National Identity Card; Treatment notes; X-ray report; Medical receipts; Medical Report; P3 Form; Police Abstract; Copy of Records relating to Motorcycle Registration Number KMGB 266H Honda; Official search receipt and Demand Letter. PW1 further testified that while walking as a pedestrian along the Mudete–Gisambai Road on 25th December 2022, he was knocked down from behind by Motorcycle Registration Number KMGB 266H Honda, sustaining serious bodily injuries including a fracture of the right femur, injuries to the face and blunt trauma. He further informed the trial Court that a metallic implant had been inserted into his leg which had not been removed because of financial constraints and that he had been unable to resume his normal work owing to the injuries sustained.
23. Significantly, the Respondent did not challenge any part of this testimony. No witness was called in rebuttal. Neither was any documentary evidence tendered contradicting the Appellant's account of the accident or the injuries sustained. It is settled law that where evidence adduced by one party remains uncontroverted, a Court is not automatically bound to accept it. The Court must still evaluate whether such evidence is credible and sufficient to discharge the burden of proof. However, where unchallenged evidence is internally consistent, supported by documentary evidence and is not inherently incredible, a Court should ordinarily accept it.
24. In Karugi & Another v Kabiya & 3 Others [1983] KECA 38 (KLR), the Court of Appeal held that: -
Although the burden of proof remains upon the Plaintiff even where the defendant calls no evidence, the absence of rebuttal evidence means that the Plaintiff's evidence stands uncontroverted and the Court should determine whether that evidence satisfies the required standard.
25. Upon reviewing the impugned judgment, this Court is persuaded that the learned trial Magistrate appreciated that the Respondent had not defended the suit. However, in evaluating the Appellant's evidence, the learned Magistrate appears to have imposed a standard of proof that was considerably higher than the balance of probabilities required in civil proceedings. The learned trial Magistrate accepted that the police abstract confirmed that an accident involving Motorcycle Registration Number KMGB 266H Honda and the Appellant had been reported. The Court also acknowledged that the Respondent had not entered appearance or controverted the Appellant's evidence. Nevertheless, the suit was dismissed principally because the Court concluded that ownership of the motorcycle had not been proved against the named Respondent.
26. While ownership is undoubtedly a material issue in determining liability, this Court respectfully finds that the learned trial Magistrate conflated the issue of ownership with the overall burden of proof and failed to consider the totality of the evidence placed before the Court. Instead of evaluating whether the evidence, taken as a whole, established the Appellant's case on a balance of probabilities, the Court appears to have required proof approaching the criminal standard.
27. In my respectful view, that approach amounted to a misdirection in law. Civil Courts are required to determine disputes on the basis of the preponderance of evidence not absolute certainty. The question was not whether every conceivable doubt had been eliminated, but whether the Appellant's evidence made it more probable than not that the Respondent bore legal responsibility for the accident complained of. Consequently, I am satisfied that the learned trial Magistrate misapprehended the applicable burden and standard of proof. The Court failed to properly appreciate that the Appellant's evidence remained wholly uncontroverted and ought to have been evaluated against the civil standard of proof. This misdirection warrants interference by this Court.
Whether the Learned Trial Magistrate Erred in Finding that Ownership and Control of the Motorcycle Had Not Been Proved
28. The principal reason advanced by the learned trial Magistrate for dismissing the Appellant's suit was that the Appellant had failed to prove that the Respondent, Jacob Mwandi, was the owner of Motorcycle Registration Number KMGB 266H Honda, the copy of records indicating that the registered owner was Honda Motorcycle Kenya Limited. The trial Court therefore concluded that the wrong party had been sued. With respect, this Court finds that the learned trial Magistrate adopted an unduly narrow approach to the issue of ownership by confining herself to the copy of records without considering the pleadings, the police abstract, the absence of a defence and the statutory allocation of the evidential burden under Section 112 of the Evidence Act. The question of ownership or control cannot be determined in isolation from the entirety of the evidence.
29. Under Section 8 of the Traffic Act, Cap. 403, the person in whose name a motor vehicle is registered is deemed to be its owner unless the contrary is proved. The Court of Appeal in the case of Joel Muga Opinja Vs East Africa Sea Food Ltd [2013] eKLR stated as follows: -
“We agree that the best way to prove ownership would be to produce to the Court a document from Registrar of motor vehicles showing who the registered owner is but when the abstract is not challenged and is produced in Court without any objection, the contents cannot later be denied”
30. However, the law is equally settled that registration is not the only mode of proving ownership. Kenyan Courts have consistently held that ownership may be established through documentary evidence other than a logbook or official search, or by evidence demonstrating possession, control or beneficial ownership. Similarly, in Kenya Alliance Insurance Co. Ltd v Thomas Ochieng Apopa (suing as Administrator of the Estate of Pamela Agola Apopa) deceased [2020] KEHC 3120 (KLR), the Court held as follows: -
91. The police abstract produced as an exhibit shows the motor vehicle involved in the accident, owner thereof, insurance and insured...…
92. …. The details in the police abstract as to the insurance are the ordinary cause of the events obtained from the Certificate of Insurance affixed on the accident motor vehicle or supplied to the police by the insured or their driver in the cause of their investigations and as required by law. There was no contrary evidence.
93. For the above many reasons, I am persuaded and satisfied that the evidence on record established on a balance of probabilities that the certificate of insurance and police abstract and copy of records produced by the Respondent proved that Jecinta Wairimu was the owner and insured of the accident Motor vehicle KBS 306C whose insurer was the Appellant herein.
31. Furthermore, Section 112 of the Evidence Act provides that where any fact is especially within the knowledge of a party, the burden of proving or disproving that fact rests upon that party. Whether the Respondent owned, controlled, rode or was otherwise legally responsible for Motorcycle Registration Number KMGB 266H Honda was a matter peculiarly within his own knowledge. Having failed to enter appearance, file a defence or produce any evidence, the Respondent did not discharge that evidential burden.
Whether the Learned Trial Magistrate erred in finding that the Appellant had failed to prove liability
32. Having found that the learned trial Magistrate misapprehended the burden and standard of proof applicable in civil proceedings, this Court now turns to the principal question that informed the dismissal of the Appellant's suit, namely, whether the Appellant had proved liability against the Respondent on a balance of probabilities. The learned trial Magistrate accepted that the Appellant was involved in a road traffic accident on 25th December 2022 and further accepted that the accident was reported to the police. Indeed, the trial Court specifically observed that the Police Abstract produced as PEXB 5 confirmed that an accident involving Motorcycle Registration Number KMGB 266H Honda and the Appellant had been reported. The learned Magistrate further acknowledged that the Respondent neither entered appearance nor controverted the Appellant's testimony. However, the suit was nevertheless dismissed solely on the basis that the copy of records produced by the
Appellant indicated that the registered owner of the motorcycle was Honda Motorcycle Kenya Limited while the suit had been instituted against Jacob Mwandi.
33. With respect, this Court is unable to agree with that conclusion. The Appellant pleaded in paragraph 3 of the Plaint that at all material times the Respondent was the registered and/or beneficial owner and person in control of Motorcycle Registration Number KMGB 266H Honda. Those pleadings were never traversed because the Respondent neither entered appearance nor filed a statement of defence. It is trite law that where allegations contained in a plaint are not specifically denied, they remain uncontroverted, although the Plaintiff must still adduce evidence in support thereof. At the hearing, PW1 testified on oath that he was lawfully walking as a pedestrian along the Mudete–Gisambai Road when Motorcycle Registration Number KMGB 266H Honda was ridden so negligently that it knocked him from behind, causing him serious bodily injuries. His testimony remained consistent throughout and was corroborated by the treatment notes, P3 Form, medical report and Police Abstract produced in evidence.
34. The Respondent neither challenged the occurrence of the accident nor disputed the Appellant's account of how the accident occurred. There was no suggestion that the accident was inevitable, that the Appellant contributed to it, or that another motorcycle was involved. In the absence of any defence or contrary evidence, the Appellant's account remained the only version of events before the Court. The learned trial Magistrate correctly observed that a Police Abstract is not conclusive proof of how an accident occurred. That proposition is legally sound. A Police Abstract merely confirms that an accident was reported to the police and records the particulars available to the investigating officer at the time of reporting. However, the learned Magistrate fell into error by failing to appreciate that a Police Abstract is not intended to be considered in isolation. It must be evaluated together with the pleadings, oral testimony and other documentary evidence on record.
35. In the present appeal, the Police Abstract identified the motorcycle involved in the accident and formed part of the Appellant's documentary evidence. More importantly, there was no evidence whatsoever from the Respondent disputing either the occurrence of the accident or his connection with the motorcycle. The learned trial Magistrate further relied on the official copy of records showing that Honda Motorcycle Kenya Limited was the registered owner of Motorcycle Registration Number KMGB 266H Honda as at 12th January 2023. While that evidence established the registered ownership of the motorcycle, it did not necessarily determine who exercised possession, custody or control of the motorcycle at the time of the accident.
36. It is now well settled that registration alone is not conclusive proof of ownership. The Courts have consistently recognized the distinction between registered ownership, beneficial ownership and possession or control of a motor vehicle. A person may lawfully be held liable for the negligent use of a motor vehicle even though he is not its registered owner, provided the evidence establishes that he had possession, custody, beneficial ownership or control of the vehicle. Section 8 of the Traffic Act creates only a rebuttable presumption that the registered owner is the owner of the motor vehicle. It does not preclude proof of ownership or control by other credible evidence. My understanding of section 8 of the Traffic Act is that the registration of the motor-vehicle is not conclusive proof of ownership but only prima facie evidence of title to a motor vehicle. The person in whose name the vehicle was registered is presumed to be the owner thereof unless proved otherwise. This finds fort from the views expressed by this Court in Securicor Kenya Ltd Vs Kyumba Holdings
Ltd [2005] eKLR as follows: -
“Our holding finds support in the decision in Osapil Vs. Kaddy [2000] 1 EALA 187 in which it was held by the Court of Appeal of Uganda that a registration card or logbook was only prima facie evidence of title to a motor vehicle and the person whose name the vehicle was registered was presumed to be the owner thereof unless proved otherwise. The appellant had, indeed, proved otherwise.”
37. The same issue came for consideration before the Court of Appeal sitting in Mombasa in the case of Muhambi Koja Vs Said Mbwana Abdi [2015 eKLR, where it was found that in the absence of evidence to the contrary the registration certificate or logbook of a motor vehicle or an abstract of the record issued by the Registrar of Motor Vehicles constitutes the best evidence to prove ownership of a motor vehicle. It was further noted that in the normal cause of business and human interactions, situations may arise where the person named in those records may have passed the vehicle to some other person in whom the ownership presently vests.
38. Indeed, the Appellant expressly pleaded that the Respondent was the registered and/or beneficial owner and person in control of the motorcycle. Those pleadings were never denied. More importantly, sect
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M/s Kariah & Co Advocates
1. The brief background facts of this Appeal is that the Appellant who was the Plaintiff at the trial Court filed a Plaint dated 17th February 2023 seeking judgment against the Respondent who was the Defendant at the trial Court as follows: -
a. General damages
b. Special damages of Kshs. 21,080.00
c. Costs of this suit
d. Interest on a, b & c at Court rates
2. The facts as stated in the Plaint were that at all material times, the Defendant had been registered and or beneficial owner in control of Motor Cycle Registration Number 266H Honda. The Appellant averred that on or about 25th December 2022 at about 1138 Hours, the Plaintiff was a lawful pedestrian along Mudete-Gisambai road at Mudete Police Station Area when the Defendant, his rider, servant, employee and/or agent rode the said Motor cycle Registration Number Motor Cycle Registration Number 266H Honda so recklessly and carelessly in such a manner that the said motor cycle violently hit the Plaintiff from behind off the road thereby causing serious injuries to the Plaintiff. The Plaintiff also averred that the said accident was a result of negligence, carelessness and/or recklessness of the Defendant, his rider, servant, employee and/or agent of the said motor vehicle. The Plaintiff further averred that the particulars of injuries were: fracture of the right femur, laceration occipital region, blunt trauma on the back and bruises on both elbows.
3. The Defendant was duly served with the Plaint but failed to enter appearance or file a defense to the suit. Subsequently, interlocutory judgment was entered at the trial Court on 27th November 2024 against the Defendant pending formal proof hearing. The matter was set down for formal proof hearing and one witness was called to stand.
4. The Trial Court delivered its judgment on 14th day of May 2025 in the following way: -
In the foregoing, had the Court found the Plaintiff had proved his claim then judgment would have been entered in favour of the Plaintiff as against the
Defendant as follows;
Liability………………………………….100%
General damages………………………Kshs. 550,000/=
Special damages………………………..Kshs. 19,550/=
Total Award………………………………Kshs. 569,550/=
Costs of the suit and interest at Court rates from the date of judgment for general damages and from the date of filing for special damages until payment in full.
Having found that the Plaintiff has not proved his claim on liability the suit herein is dismissed with no costs awarded.
5. The Appellant being dissatisfied with the judgment of the Trial Magistrate at Vihiga delivered by Hon P. Karimi (RM) on 14/05/2025 in Vihiga PMCC E032 of 2023 appealed against liability of the said judgment vide a Memorandum of Appeal dated 20th May 2025 based on the following 3 grounds: -
a. The Trial Court erred in law and fact in dismissing the suit on account of the Appellant’s failure to prove the case against the Respondent when there was sufficient evidence to make her find otherwise.
b. The Trial Court erred in law and fact in misapprehending the law and facts placed before her and determined the suit beyond the standard of proof established in law for civil cases.
c. The Trial Magistrate occasioned a travesty of justice by misapprehending the law and facts placed before her by the Appellant, which was not even challenged and/or disputed.
6. The Appellant sought the following orders from the Memorandum of Appeal;
a. That the finding of the Trial Magistrate on dismissing the Appellant’s suit be set side, be reviewed and/or revised and/or be substituted with a judgment of this Honourable Court.
b. That this Honourable Court do make such further orders as it may deem fit.
c. That this appeal be allowed with costs to the Appellant.
7. The Appeal was canvassed by way of written submissions.
Appellant’s Written Submissions
8. The Appellant filed his written submissions dated 1st December 2025 through his Learned Counse Mr. Kariah. Learned Counsel for the Appellant Mr Kariah submitted that the trial Court misapprehended the law and evidence by dismissing the suit despite the Appellant providing sufficient and uncontroverted evidence on a balance of probabilities. He argued that this being a first appeal, the High Court has a primary role to re-evaluate, reassess and re-analyse the record to reach its own conclusions, a principle established in Abok James Odera T/A A.I Odera & Associates vs John Patrick Macharia T/A Macharia & Co. Advocates [2013] eKLR and Selle vs Associated Motor Boat Co. [1968] EA 123.
9. Counsel further contended that the trial Magistrate erroneously elevated the civil standard of proof to one beyond reasonable doubt, thereby shifting the burden of proof contrary to the Evidence Act. He relied on William Kabogo Gitau v George Thuo & 2 Others [2010] KEHC 4124 and Palace Investments Limited v Geoffrey Kariuki Mwenda & Another [2015] eKLR (citing Miller v Minister of Pensions [1947] 2 ALL ER 372) to emphasize that a case is determined by who is more likely than not to be right, noting that the Respondent offered no rebuttal or alternative narrative. Mr. Kariah further submitted that the trial Court erred in failing to recognize the evidentiary value of the police abstract, which identified the Respondent as the owner in control of the motorcycle registration number KMGB 266 Honda. He cited Joel Muga Opija v East African Sea Food Limited [2013] KECA 181 (KLR) and Kenya Alliance Insurance Co. Ltd vs Thomas Ochieng Apopa [2020] KEHC 3109 (KLR) to demonstrate that a police abstract is prima facie evidence of ownership that must be countered by the defense. Under Section 8 of the Traffic Act (Cap. 403) and Section 112 of the Evidence Act, the burden of proving ownership or control lay with the Respondent, as these facts were peculiarly within his knowledge. Counsel also pointed to Karugi & Another v Kabiya & 3 Others [1983] KECA 38 (KLR) to argue that when a defendant fails to call evidence, the Plaintiff’s burden of proof is lessened, making it easier to discharge if the evidence is credible.
10. Finally, Counsel argued that the trial Court's finding that the Respondent was not served with pleadings was factually incorrect and contradicted by the record, which included an Affidavit of Service and the Court's own endorsement of service for the purposes of a request for judgment. Citing William Muthee Muthiami v Bank of Baroda [2014] MUGA 591 (KLR), he maintained that a Court's decision must flow from the pleadings and evidence on record. Consequently, the Appellant urged the Court to set aside the dismissal, find the Respondent 100% liable for the accident and award Kshs.
2,500,000/= and special damages as originally sought in the trial suit.
Respondent’s Written Submissions
11. A look at the record indicates that the Respondent did not enter appearance in this Appeal. The Respondent did not also file submissions to dispose the Appeal. I will however determine the Appeal on its merits.
Analysis and Determination
12. I have carefully considered the Record of Appeal, the pleadings filed before the trial Court, the proceedings, the documentary evidence produced during the formal proof hearing, the judgment of the learned trial Magistrate, the Memorandum of Appeal and the written submissions filed by the Appellant. Since this is a first appeal, this Court is under a legal duty to subject the entire evidence on record to a fresh, exhaustive and independent evaluation, analyze it afresh and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify and must therefore give due allowance for that disadvantage. This Court’s the jurisdiction to review the evidence should be exercised with caution. In the cases of Peters Vs Sunday Post Limited [1958] EA 424, the Court therein rendered itself as follows: - “It is a strong thing for an appellate Court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate Court might have come to a different conclusion…”
13. It must be borne in mind that the Court does not have the advantage of seeing and hearing the witnesses as did the lower Court, yet it must reconsider the evidence, evaluate it itself and draw its own conclusions. In Selle & Another Vs Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus: -
“...this Court is not bound necessarily to accept the findings of fact by the Court below. An appeal to this Court ... is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that 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..."
12. Guided by the foregoing principles, this Court shall independently re-evaluate the evidence that was presented before the learned trial Magistrate and determine whether the findings made are supported by the law and the evidence on record.
Scope of the Appeal
13. From the Memorandum of Appeal dated 20th May 2025, the Appellant challenges only the learned trial Magistrate's finding on liability. Although three grounds of appeal have been raised, they revolve around one central issue, namely, that the learned trial Magistrate misapprehended both the law and the evidence and consequently erred in dismissing the Appellant's claim despite the evidence tendered during the formal proof hearing being uncontroverted. In particular, the Appellant contends that the learned trial
Magistrate erred by: -
a) Applying a standard of proof higher than that required in civil proceedings;
b) Failing to appreciate the legal effect of the Respondent's failure to enter appearance and file a defence.
c) Misdirecting herself on the evidential value of the police abstract and other documentary evidence produced before the Court.
d) Erroneously finding that ownership of the motorcycle blamed for the accident had not been established.
e) Consequently, dismissing the Appellant's suit notwithstanding that interlocutory judgment had already been entered against the Respondent. 14. The Respondent neither entered appearance in this appeal nor filed any submissions despite having been duly served. Nevertheless, this Court is under an obligation to determine the appeal on its merits. It is now settled that the failure by a respondent to participate in an appeal does not automatically entitle the appellant to succeed. The appellant must still demonstrate that the impugned decision is erroneous in law or fact. An appellate Court must therefore interrogate the record independently before interfering with the findings of the trial Court. Having considered the Memorandum of Appeal and the judgment appealed against, I am of the view that the issues arising for determination are as follows: -
a. Whether the learned trial Magistrate misdirected herself on the burden and standard of proof applicable during a formal proof hearing.
b. Whether the learned trial Magistrate erred in finding that the ownership or control of Motorcycle Registration Number KMGB 266H Honda had not been proved.
c. Whether the learned trial Magistrate properly appreciated the legal effect of the Respondent's failure to enter appearance, file a defence or adduce evidence in rebuttal.
d. Whether the dismissal of the Appellant's suit was justified in the circumstances of this case.
15. Before addressing the foregoing issues, it is necessary to restate the applicable legal principles governing the burden and standard of proof in civil proceedings, particularly where a matter proceeds by way of formal proof after interlocutory judgment has been entered. The resolution of those principles lies at the heart of this appeal because the learned trial Magistrate dismissed the Appellant's suit on the ground that liability had not been proved notwithstanding that the Respondent neither defended the suit nor challenged the evidence tendered by the Appellant.
Whether the Learned Trial Magistrate Erred on the Burden and Standard of Proof
16. The first issue for determination is whether the learned trial Magistrate properly appreciated the burden and standard of proof applicable in a civil claim that proceeds by way of formal proof after interlocutory judgment has been entered. The law regarding the burden of proof is principally contained in Sections 107, 108 and 109 of the Evidence Act. Section 107(1) provides that: -
“Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
17. Section 108 further provides that: -
“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”
18. Equally, Section 109 of the Evidence Act provides that: -
“The burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person.”
19. The foregoing provisions establish the general principle that the legal burden of proof rests upon the Plaintiff throughout the proceedings. However, the standard required in civil proceedings is not proof beyond reasonable doubt but proof on a balance of probabilities. The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 as follows: -
“In ordinary civil cases, a case may be determined in favour of a party who persuades the Court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”
20. The burden of proof is placed upon the appellant and is to be discharged on a balance of probabilities. Denning J. in Miller –vs- Minister of Pensions [1947] 2 ALL ER 372 discussing the burden of proof had this to say: -
“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
21. It therefore follows that although a Plaintiff bears the burden of proving his case, the evidential threshold is substantially lower than that applicable in criminal proceedings. The record shows that the Respondent neither entered appearance nor filed a statement of defence despite having been duly served with summons to enter appearance. Consequently, upon the Appellant's request, interlocutory judgment was regularly entered against the Respondent on 27th November 2024 and the matter proceeded for formal proof. The legal effect of interlocutory judgment in a claim founded on negligence is that although liability must still be established through evidence, the defendant loses the opportunity to traverse the pleaded facts unless leave is obtained to set aside the interlocutory judgment. The Plaintiff is nevertheless required to adduce credible evidence to satisfy the Court that the claim is proved on a balance of probabilities.
22. During the formal proof hearing, the Appellant testified as PW1 and adopted his witness statement as part of his evidence. He also produced documentary evidence without any objection. These included: National Identity Card; Treatment notes; X-ray report; Medical receipts; Medical Report; P3 Form; Police Abstract; Copy of Records relating to Motorcycle Registration Number KMGB 266H Honda; Official search receipt and Demand Letter. PW1 further testified that while walking as a pedestrian along the Mudete–Gisambai Road on 25th December 2022, he was knocked down from behind by Motorcycle Registration Number KMGB 266H Honda, sustaining serious bodily injuries including a fracture of the right femur, injuries to the face and blunt trauma. He further informed the trial Court that a metallic implant had been inserted into his leg which had not been removed because of financial constraints and that he had been unable to resume his normal work owing to the injuries sustained.
23. Significantly, the Respondent did not challenge any part of this testimony. No witness was called in rebuttal. Neither was any documentary evidence tendered contradicting the Appellant's account of the accident or the injuries sustained. It is settled law that where evidence adduced by one party remains uncontroverted, a Court is not automatically bound to accept it. The Court must still evaluate whether such evidence is credible and sufficient to discharge the burden of proof. However, where unchallenged evidence is internally consistent, supported by documentary evidence and is not inherently incredible, a Court should ordinarily accept it.
24. In Karugi & Another v Kabiya & 3 Others [1983] KECA 38 (KLR), the Court of Appeal held that: -
Although the burden of proof remains upon the Plaintiff even where the defendant calls no evidence, the absence of rebuttal evidence means that the Plaintiff's evidence stands uncontroverted and the Court should determine whether that evidence satisfies the required standard.
25. Upon reviewing the impugned judgment, this Court is persuaded that the learned trial Magistrate appreciated that the Respondent had not defended the suit. However, in evaluating the Appellant's evidence, the learned Magistrate appears to have imposed a standard of proof that was considerably higher than the balance of probabilities required in civil proceedings. The learned trial Magistrate accepted that the police abstract confirmed that an accident involving Motorcycle Registration Number KMGB 266H Honda and the Appellant had been reported. The Court also acknowledged that the Respondent had not entered appearance or controverted the Appellant's evidence. Nevertheless, the suit was dismissed principally because the Court concluded that ownership of the motorcycle had not been proved against the named Respondent.
26. While ownership is undoubtedly a material issue in determining liability, this Court respectfully finds that the learned trial Magistrate conflated the issue of ownership with the overall burden of proof and failed to consider the totality of the evidence placed before the Court. Instead of evaluating whether the evidence, taken as a whole, established the Appellant's case on a balance of probabilities, the Court appears to have required proof approaching the criminal standard.
27. In my respectful view, that approach amounted to a misdirection in law. Civil Courts are required to determine disputes on the basis of the preponderance of evidence not absolute certainty. The question was not whether every conceivable doubt had been eliminated, but whether the Appellant's evidence made it more probable than not that the Respondent bore legal responsibility for the accident complained of. Consequently, I am satisfied that the learned trial Magistrate misapprehended the applicable burden and standard of proof. The Court failed to properly appreciate that the Appellant's evidence remained wholly uncontroverted and ought to have been evaluated against the civil standard of proof. This misdirection warrants interference by this Court.
Whether the Learned Trial Magistrate Erred in Finding that Ownership and Control of the Motorcycle Had Not Been Proved
28. The principal reason advanced by the learned trial Magistrate for dismissing the Appellant's suit was that the Appellant had failed to prove that the Respondent, Jacob Mwandi, was the owner of Motorcycle Registration Number KMGB 266H Honda, the copy of records indicating that the registered owner was Honda Motorcycle Kenya Limited. The trial Court therefore concluded that the wrong party had been sued. With respect, this Court finds that the learned trial Magistrate adopted an unduly narrow approach to the issue of ownership by confining herself to the copy of records without considering the pleadings, the police abstract, the absence of a defence and the statutory allocation of the evidential burden under Section 112 of the Evidence Act. The question of ownership or control cannot be determined in isolation from the entirety of the evidence.
29. Under Section 8 of the Traffic Act, Cap. 403, the person in whose name a motor vehicle is registered is deemed to be its owner unless the contrary is proved. The Court of Appeal in the case of Joel Muga Opinja Vs East Africa Sea Food Ltd [2013] eKLR stated as follows: -
“We agree that the best way to prove ownership would be to produce to the Court a document from Registrar of motor vehicles showing who the registered owner is but when the abstract is not challenged and is produced in Court without any objection, the contents cannot later be denied”
30. However, the law is equally settled that registration is not the only mode of proving ownership. Kenyan Courts have consistently held that ownership may be established through documentary evidence other than a logbook or official search, or by evidence demonstrating possession, control or beneficial ownership. Similarly, in Kenya Alliance Insurance Co. Ltd v Thomas Ochieng Apopa (suing as Administrator of the Estate of Pamela Agola Apopa) deceased [2020] KEHC 3120 (KLR), the Court held as follows: -
91. The police abstract produced as an exhibit shows the motor vehicle involved in the accident, owner thereof, insurance and insured...…
92. …. The details in the police abstract as to the insurance are the ordinary cause of the events obtained from the Certificate of Insurance affixed on the accident motor vehicle or supplied to the police by the insured or their driver in the cause of their investigations and as required by law. There was no contrary evidence.
93. For the above many reasons, I am persuaded and satisfied that the evidence on record established on a balance of probabilities that the certificate of insurance and police abstract and copy of records produced by the Respondent proved that Jecinta Wairimu was the owner and insured of the accident Motor vehicle KBS 306C whose insurer was the Appellant herein.
31. Furthermore, Section 112 of the Evidence Act provides that where any fact is especially within the knowledge of a party, the burden of proving or disproving that fact rests upon that party. Whether the Respondent owned, controlled, rode or was otherwise legally responsible for Motorcycle Registration Number KMGB 266H Honda was a matter peculiarly within his own knowledge. Having failed to enter appearance, file a defence or produce any evidence, the Respondent did not discharge that evidential burden.
Whether the Learned Trial Magistrate erred in finding that the Appellant had failed to prove liability
32. Having found that the learned trial Magistrate misapprehended the burden and standard of proof applicable in civil proceedings, this Court now turns to the principal question that informed the dismissal of the Appellant's suit, namely, whether the Appellant had proved liability against the Respondent on a balance of probabilities. The learned trial Magistrate accepted that the Appellant was involved in a road traffic accident on 25th December 2022 and further accepted that the accident was reported to the police. Indeed, the trial Court specifically observed that the Police Abstract produced as PEXB 5 confirmed that an accident involving Motorcycle Registration Number KMGB 266H Honda and the Appellant had been reported. The learned Magistrate further acknowledged that the Respondent neither entered appearance nor controverted the Appellant's testimony. However, the suit was nevertheless dismissed solely on the basis that the copy of records produced by the
Appellant indicated that the registered owner of the motorcycle was Honda Motorcycle Kenya Limited while the suit had been instituted against Jacob Mwandi.
33. With respect, this Court is unable to agree with that conclusion. The Appellant pleaded in paragraph 3 of the Plaint that at all material times the Respondent was the registered and/or beneficial owner and person in control of Motorcycle Registration Number KMGB 266H Honda. Those pleadings were never traversed because the Respondent neither entered appearance nor filed a statement of defence. It is trite law that where allegations contained in a plaint are not specifically denied, they remain uncontroverted, although the Plaintiff must still adduce evidence in support thereof. At the hearing, PW1 testified on oath that he was lawfully walking as a pedestrian along the Mudete–Gisambai Road when Motorcycle Registration Number KMGB 266H Honda was ridden so negligently that it knocked him from behind, causing him serious bodily injuries. His testimony remained consistent throughout and was corroborated by the treatment notes, P3 Form, medical report and Police Abstract produced in evidence.
34. The Respondent neither challenged the occurrence of the accident nor disputed the Appellant's account of how the accident occurred. There was no suggestion that the accident was inevitable, that the Appellant contributed to it, or that another motorcycle was involved. In the absence of any defence or contrary evidence, the Appellant's account remained the only version of events before the Court. The learned trial Magistrate correctly observed that a Police Abstract is not conclusive proof of how an accident occurred. That proposition is legally sound. A Police Abstract merely confirms that an accident was reported to the police and records the particulars available to the investigating officer at the time of reporting. However, the learned Magistrate fell into error by failing to appreciate that a Police Abstract is not intended to be considered in isolation. It must be evaluated together with the pleadings, oral testimony and other documentary evidence on record.
35. In the present appeal, the Police Abstract identified the motorcycle involved in the accident and formed part of the Appellant's documentary evidence. More importantly, there was no evidence whatsoever from the Respondent disputing either the occurrence of the accident or his connection with the motorcycle. The learned trial Magistrate further relied on the official copy of records showing that Honda Motorcycle Kenya Limited was the registered owner of Motorcycle Registration Number KMGB 266H Honda as at 12th January 2023. While that evidence established the registered ownership of the motorcycle, it did not necessarily determine who exercised possession, custody or control of the motorcycle at the time of the accident.
36. It is now well settled that registration alone is not conclusive proof of ownership. The Courts have consistently recognized the distinction between registered ownership, beneficial ownership and possession or control of a motor vehicle. A person may lawfully be held liable for the negligent use of a motor vehicle even though he is not its registered owner, provided the evidence establishes that he had possession, custody, beneficial ownership or control of the vehicle. Section 8 of the Traffic Act creates only a rebuttable presumption that the registered owner is the owner of the motor vehicle. It does not preclude proof of ownership or control by other credible evidence. My understanding of section 8 of the Traffic Act is that the registration of the motor-vehicle is not conclusive proof of ownership but only prima facie evidence of title to a motor vehicle. The person in whose name the vehicle was registered is presumed to be the owner thereof unless proved otherwise. This finds fort from the views expressed by this Court in Securicor Kenya Ltd Vs Kyumba Holdings
Ltd [2005] eKLR as follows: -
“Our holding finds support in the decision in Osapil Vs. Kaddy [2000] 1 EALA 187 in which it was held by the Court of Appeal of Uganda that a registration card or logbook was only prima facie evidence of title to a motor vehicle and the person whose name the vehicle was registered was presumed to be the owner thereof unless proved otherwise. The appellant had, indeed, proved otherwise.”
37. The same issue came for consideration before the Court of Appeal sitting in Mombasa in the case of Muhambi Koja Vs Said Mbwana Abdi [2015 eKLR, where it was found that in the absence of evidence to the contrary the registration certificate or logbook of a motor vehicle or an abstract of the record issued by the Registrar of Motor Vehicles constitutes the best evidence to prove ownership of a motor vehicle. It was further noted that in the normal cause of business and human interactions, situations may arise where the person named in those records may have passed the vehicle to some other person in whom the ownership presently vests.
38. Indeed, the Appellant expressly pleaded that the Respondent was the registered and/or beneficial owner and person in control of the motorcycle. Those pleadings were never denied. More importantly, sect
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