REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL APPELLATE DIVISION
CIVIL APPEAL NO. E126 OF 2024
HONDA MOTORCYCLE (K) LTD……..….…………..……. APPELLANT
VERSUS
SHEM OMWENO MOSIRA………….…………………. 1 st RESPONDENT
JACKSON ONYANCHA………………………………….2 nd RESPONDENT
SEED OF HOPE FUND LTD……………………………..3 rd RESPONDENT
( BEING AN APPEAL FROM THE JUDGMENT/ DECREE OF HON GREEN OPIYO, RESIDENT MAGISTRATE DELIVERED ON 15 th JANUARY 2024 IN NAIROBI MILIMANI SCCC NO E5428 OF 2023 )
ARISING BETWEEN
SHEM OMWENO MOSIRA ……..…………………….………..CLAIMANT
VERSUS
HONDA MOTORCYCLE (K) LTD ………..…….……… 1 st RESPONDENT
JACKSON ONYANCHA…………………….……………2 nd RESPONDENT
SEED OF HOPE LTD……………….……..…….…………3 rd RESPONDENT
J U D G M E N T
A. Introduction
1. This Appeal challenges the Judgment/decree of Hon Opiyo Green Odero , Resident Magistrate dated 15 th January 2024, delivered in Milimani Small claims court in SCCC No E5248 of 2023 , where he awarded the 1 st respondent general damages of Kshs.250,000/= for the injuries sustain in a road traffic accident and special damages of Kshs.7,050/= plus costs and interest at court rates.
2. The background hereto was that the respondent filed his statement of claim dated 21 st September 2023 against the appellant and 2 nd respondent wherein he averred that on or about the 29 th January 2023 he was a pillion passenger aboard motorcycle registration Number KMFN 931Y , when the 2 nd respondent being the rider thereof managed controlled and/or so carelessly , negligently and/or recklessly rode the said motorcycle such that it lost control and, he caused it to hit motor vehicle registration number KBZ 178P and as a consequence causing him to suffer serious bodily injuries, loss and damage. He therefore claimed compensation for the same.
3. In response, the Appellant did file their response to statement of claim and denied into all the averments made by the 1 st respondent in his statement of claim and put him to strict proof thereof. They further denied that the 2 nd respondent was their employee and/or rider and also clarified that they had sold the suit motor cycle on 13 th April 2021 ( two years before the date of judgment), in their ordinary cause of business to the 3 rd respondent, and gave notice that they would join the said organization as a party to the suit. They thus urged the court to dismiss the suit filed against them with costs.
4. After the pleadings had closed, the parties took directions and the appellant was allowed to join the 3 rd respondent herein as a 3 rd party. Subsequently the parties consented to the suit proceeding under section 30 of the Small Claims Court Act . The witness statements were adopted as evidence and documents relied on admitted as exhibits.
5. The learned trial magistrate considered the same and held that the appellant did not prove that they had sold the suit motorcycle to the 3 rd respondent and therefore held that they were 100% liable for the accident that occurred. He proceeded to award the 1 st respondent Kshs.250,00/= for pain and suffering and loss of amenities, plus Kshs.7,050/= as special damages plus costs and Interest of the suit
B. THE APPEAL
6. The Appellant, being dissatisfied with the said Judgment, raised eight (8) grounds of appeal, namely: -
a) That the Honourable Adjudicator erred in law when he made a finding for the 1 st respondent herein but failed to specify which respondents were liable to settle the award.
b) Although the matter proceeded by way of documentary evidence under Section 30 of the small claims court Act, the court did not consider the documentary evidence by the appellant that the motorcycle had been sold and delivered to the 3 rd respondent
c) That the Honourable Adjudicator erred in law by acknowledging that the 1 st respondent/Appellant had supplied a tax invoice and delivery note indicating that the motorcycle had been sold and delivered to seed of hope fund limited and still held that the Appellant herein did not provide evidence to show that it was not the beneficial or legal owner of the impugned motorcycle Registration No KMFN 931Y, which is alleged to have caused the accident.
d) That the learned Adjudicator erred in law when he held that the Appellant was vicariously liable for the accident yet no evidence was tendered by the 1 st respondent indicating that the 2 nd respondent was under control, employment or command of the Appellant at the time of the accident.
e) That the Honourable Adjudicator erred in law when he made reference to the court of appeal in the case of Joel Mugo Opija (2013) KLR Where proof of ownership was sufficient as per the registration owner, but failed to consider that proof to the contrary was evidence enough to show that the Appellant did not have beneficial ownership of the said motorcycle.
f) That the Honorable Adjudicator erred in law when he failed to consider tendered evidence in the delivery note and tax invoice showing actual sale and delivery of the subject motorcycle to the seed of Hope Fund limited.
g) That the Honourable Adjudicator erred in law when he held the Appellant vicariously liable for the actions of the driver over the accident having tendered evidence that the Appellant had sold the subject motorcycle and no control or management over both the motorcycle and the driver.
h) That the Honourable Adjudicator erred in law when he awarded the claimant Kshs.257,050/= with interest thereon but failed to specify who was to bear the costs and who was responsible for paying the judgment debt to the claimant, when judgment had been entered against the 2 nd respondent.
7. The Appellant thus prayed that the appeal be allowed and the judgment of the trial court be set aside and the 1 st respondent’s claim be dismissed with costs.
C. ANALYSIS AND DETERMINATION
8. I have considered the entire record of Appeal and pleadings filed, the grounds of appeal raised, the submissions filed by the Appellant, and the cited authorities. This being an appeal from the Small Claims Court, it is important to point out that Section 38 of the Small Claims Court Act provides that appeals from the said court shall be only on issues of law. See John Munuve Mati Vr The returning officer, Mwingi North Constituency & 2 others (2018) eKLR & Charles Kipkoech Leting Vs Express (K) Ltd & Another NKU CA Civil Appeal No 40 of 2016 (2018) eKLR
9. In Charles Kipkoech letting Vs Express (k) ltd & Ano NKU CA Civil Appeal No 40 of 2016 (2018) Eklr the court of Appeal in relation to its jurisdiction on second appeals to determine matters of law observed as follows
“ Our mandate is as has been enunciated in a long line of cases decided by the court. See Maina Vs Mugiria (1983) KLR 78, Kenya Breweries Ltd Vs Godfrey Odongo, Civil Appeal No 127 of 2007 and Stanley N Muriithi & Another vrs Bernard Munene Ithiga (2016) Eklr for the holdings inter alia that, on a second appeal, the court confines itself to matters of law only, unless it is shown that the courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. See also the English case of Martin vrs Glywed Distributors Ltd (T/A MBS Fastenings) 1983 ICR 511 wherein it was held inter alia that where a right of appeal is confined to questions of law only, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact and law, and, it should not interfere with the decisions of the trial or first appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law.
10. The only issue that arises in this appeal, is whether the trial court correctly determined the issue of ownership of the suit motorcycle , and though it is a question of fact, this court can interfere with the said finding if it is shown that the courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision.
11. Section 8 of the Traffic Act which provides thus;
The person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle .
12. Section 2 of the same Act provides that;
“owner”, in relation to a vehicle which is the subject of a hire-purchase agreement or hiring agreement, includes the person in possession of the vehicle under that agreement;
13. In the decision of Samuel Mukunya Kamunge Vs John Mwangi Kamuru Civil Appeal NO 34 OF 2002, it was held that
“It is true that a certificate of search from the Registrar of motor vehicle would have shown who was the registered owner of the motor vehicle according to the records held at the registrar of motor vehicle, That however is not conclusive proof of actual ownership of the motor vehicle as section 8 of the Traffic Act provides that the contrary can be proved. This is in recognition of the fact that often time’s vehicle changes hands but the records are not Amended . I find that the trial Magistrate was wrong in holding that only a certificate of search from the Registrar of motor vehicle could prove ownership of the motor vehicle.”
36. The court of Appeal also in the case of Jared Magwaro Bundi & Another Vs Primarose Flowers limited (2018) eklr , held that;
“ It was therefore held in Muhambi Koja (supra) that section 8 of the Traffic Act recognizes registration book or the registrar’s extract of the record as prima facie evidence of title to a vehicle and the persons in whose name the vehicle is registered is presumed to be the owner thereof unless the contrary is proved. The burden is discharged if, on a balance of probabilities, it is shown that as a matter of fact the vehicle had been transferred but not yet registered to a de facto owner, a beneficial owner or a possessory owner. Such a owner though not registered for the practical purpose maybe more relevant than in whose name the vehicle is registered.”
The position taken by this court in Joel Muga opija (supra) and Muhambi Koja (supra) appears to us to accord with modern thinking and jurisprudence where the law is encouraging courts to interpret the law governed more by substance that the technical chains of form, the latter which does not ordinarily look at the justice of a case.”
14. The Appellant did provide proof of transfer of ownership of several motorcycles to Seed of hope fund Ltd , through the delivery note and Tax invoice addressed to the said purchaser, and this occurred on 13/04/2021 about two years before the accident in question did occur. To my mind, this evidence did on a balance of probability prove that the suit motorcycle had been sold and as stated by Kimaru J in William Kabogo Gitau Vs George Thuo & 2 others (2010) 1 klr 526 s;
“ In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleased 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 opposite party is said to have established his case on a balance of probabilities . He has established that it is probable than not that the allegation that he made has occurred.
15. The finding of the learned trial court to the effect that the appellant did not prove the said suit motorcycle to Seeds of hope fund Ltd was thus an error, which this court has to correct. Finally, on liability though not stated in the judgment, it follows that it is only the 2 nd respondent who will bear the sole responsibility of settling the decretal sum.
C . DISPOSITION
12. Flowing from the above I do find that this Appeal has merit. The judgment/decree issued in MILIMANI SCCC NO 5248/2023 dated 15 th January 2025 as against the Appellant is hereby set aside in it entirety.
13. The Appellant is awarded costs of the primary suit, but each party will bear their own costs of this Appeal
14. It is so ordered.
Dated, signed, and delivered in open court at this 18 th day of MAY 2026.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Team this 18 th day of MAY 2026.
In the presence of : -
……………………N/A……………………………..Appellant
………………………N/A…………………………. Respondent
………………………JARSO……………………….Court Assistant
HCCA NO. E126 OF 2024 2
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL APPELLATE DIVISION
CIVIL APPEAL NO. E126 OF 2024
HONDA MOTORCYCLE (K) LTD……..….…………..……. APPELLANT
VERSUS
SHEM OMWENO MOSIRA………….…………………. 1 st RESPONDENT
JACKSON ONYANCHA………………………………….2 nd RESPONDENT
SEED OF HOPE FUND LTD……………………………..3 rd RESPONDENT
( BEING AN APPEAL FROM THE JUDGMENT/ DECREE OF HON GREEN OPIYO, RESIDENT MAGISTRATE DELIVERED ON 15 th JANUARY 2024 IN NAIROBI MILIMANI SCCC NO E5428 OF 2023 )
ARISING BETWEEN
SHEM OMWENO MOSIRA ……..…………………….………..CLAIMANT
VERSUS
HONDA MOTORCYCLE (K) LTD ………..…….……… 1 st RESPONDENT
JACKSON ONYANCHA…………………….……………2 nd RESPONDENT
SEED OF HOPE LTD……………….……..…….…………3 rd RESPONDENT
J U D G M E N T
A. Introduction
1. This Appeal challenges the Judgment/decree of Hon Opiyo Green Odero , Resident Magistrate dated 15 th January 2024, delivered in Milimani Small claims court in SCCC No E5248 of 2023 , where he awarded the 1 st respondent general damages of Kshs.250,000/= for the injuries sustain in a road traffic accident and special damages of Kshs.7,050/= plus costs and interest at court rates.
2. The background hereto was that the respondent filed his statement of claim dated 21 st September 2023 against the appellant and 2 nd respondent wherein he averred that on or about the 29 th January 2023 he was a pillion passenger aboard motorcycle registration Number KMFN 931Y , when the 2 nd respondent being the rider thereof managed controlled and/or so carelessly , negligently and/or recklessly rode the said motorcycle such that it lost control and, he caused it to hit motor vehicle registration number KBZ 178P and as a consequence causing him to suffer serious bodily injuries, loss and damage. He therefore claimed compensation for the same.
3. In response, the Appellant did file their response to statement of claim and denied into all the averments made by the 1 st respondent in his statement of claim and put him to strict proof thereof. They further denied that the 2 nd respondent was their employee and/or rider and also clarified that they had sold the suit motor cycle on 13 th April 2021 ( two years before the date of judgment), in their ordinary cause of business to the 3 rd respondent, and gave notice that they would join the said organization as a party to the suit. They thus urged the court to dismiss the suit filed against them with costs.
4. After the pleadings had closed, the parties took directions and the appellant was allowed to join the 3 rd respondent herein as a 3 rd party. Subsequently the parties consented to the suit proceeding under section 30 of the Small Claims Court Act . The witness statements were adopted as evidence and documents relied on admitted as exhibits.
5. The learned trial magistrate considered the same and held that the appellant did not prove that they had sold the suit motorcycle to the 3 rd respondent and therefore held that they were 100% liable for the accident that occurred. He proceeded to award the 1 st respondent Kshs.250,00/= for pain and suffering and loss of amenities, plus Kshs.7,050/= as special damages plus costs and Interest of the suit
B. THE APPEAL
6. The Appellant, being dissatisfied with the said Judgment, raised eight (8) grounds of appeal, namely: -
a) That the Honourable Adjudicator erred in law when he made a finding for the 1 st respondent herein but failed to specify which respondents were liable to settle the award.
b) Although the matter proceeded by way of documentary evidence under Section 30 of the small claims court Act, the court did not consider the documentary evidence by the appellant that the motorcycle had been sold and delivered to the 3 rd respondent
c) That the Honourable Adjudicator erred in law by acknowledging that the 1 st respondent/Appellant had supplied a tax invoice and delivery note indicating that the motorcycle had been sold and delivered to seed of hope fund limited and still held that the Appellant herein did not provide evidence to show that it was not the beneficial or legal owner of the impugned motorcycle Registration No KMFN 931Y, which is alleged to have caused the accident.
d) That the learned Adjudicator erred in law when he held that the Appellant was vicariously liable for the accident yet no evidence was tendered by the 1 st respondent indicating that the 2 nd respondent was under control, employment or command of the Appellant at the time of the accident.
e) That the Honourable Adjudicator erred in law when he made reference to the court of appeal in the case of Joel Mugo Opija (2013) KLR Where proof of ownership was sufficient as per the registration owner, but failed to consider that proof to the contrary was evidence enough to show that the Appellant did not have beneficial ownership of the said motorcycle.
f) That the Honorable Adjudicator erred in law when he failed to consider tendered evidence in the delivery note and tax invoice showing actual sale and delivery of the subject motorcycle to the seed of Hope Fund limited.
g) That the Honourable Adjudicator erred in law when he held the Appellant vicariously liable for the actions of the driver over the accident having tendered evidence that the Appellant had sold the subject motorcycle and no control or management over both the motorcycle and the driver.
h) That the Honourable Adjudicator erred in law when he awarded the claimant Kshs.257,050/= with interest thereon but failed to specify who was to bear the costs and who was responsible for paying the judgment debt to the claimant, when judgment had been entered against the 2 nd respondent.
7. The Appellant thus prayed that the appeal be allowed and the judgment of the trial court be set aside and the 1 st respondent’s claim be dismissed with costs.
C. ANALYSIS AND DETERMINATION
8. I have considered the entire record of Appeal and pleadings filed, the grounds of appeal raised, the submissions filed by the Appellant, and the cited authorities. This being an appeal from the Small Claims Court, it is important to point out that Section 38 of the Small Claims Court Act provides that appeals from the said court shall be only on issues of law. See John Munuve Mati Vr The returning officer, Mwingi North Constituency & 2 others (2018) eKLR & Charles Kipkoech Leting Vs Express (K) Ltd & Another NKU CA Civil Appeal No 40 of 2016 (2018) eKLR
9. In Charles Kipkoech letting Vs Express (k) ltd & Ano NKU CA Civil Appeal No 40 of 2016 (2018) Eklr the court of Appeal in relation to its jurisdiction on second appeals to determine matters of law observed as follows
“ Our mandate is as has been enunciated in a long line of cases decided by the court. See Maina Vs Mugiria (1983) KLR 78, Kenya Breweries Ltd Vs Godfrey Odongo, Civil Appeal No 127 of 2007 and Stanley N Muriithi & Another vrs Bernard Munene Ithiga (2016) Eklr for the holdings inter alia that, on a second appeal, the court confines itself to matters of law only, unless it is shown that the courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. See also the English case of Martin vrs Glywed Distributors Ltd (T/A MBS Fastenings) 1983 ICR 511 wherein it was held inter alia that where a right of appeal is confined to questions of law only, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact and law, and, it should not interfere with the decisions of the trial or first appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law.
10. The only issue that arises in this appeal, is whether the trial court correctly determined the issue of ownership of the suit motorcycle , and though it is a question of fact, this court can interfere with the said finding if it is shown that the courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision.
11. Section 8 of the Traffic Act which provides thus;
The person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle .
12. Section 2 of the same Act provides that;
“owner”, in relation to a vehicle which is the subject of a hire-purchase agreement or hiring agreement, includes the person in possession of the vehicle under that agreement;
13. In the decision of Samuel Mukunya Kamunge Vs John Mwangi Kamuru Civil Appeal NO 34 OF 2002, it was held that
“It is true that a certificate of search from the Registrar of motor vehicle would have shown who was the registered owner of the motor vehicle according to the records held at the registrar of motor vehicle, That however is not conclusive proof of actual ownership of the motor vehicle as section 8 of the Traffic Act provides that the contrary can be proved. This is in recognition of the fact that often time’s vehicle changes hands but the records are not Amended . I find that the trial Magistrate was wrong in holding that only a certificate of search from the Registrar of motor vehicle could prove ownership of the motor vehicle.”
36. The court of Appeal also in the case of Jared Magwaro Bundi & Another Vs Primarose Flowers limited (2018) eklr , held that;
“ It was therefore held in Muhambi Koja (supra) that section 8 of the Traffic Act recognizes registration book or the registrar’s extract of the record as prima facie evidence of title to a vehicle and the persons in whose name the vehicle is registered is presumed to be the owner thereof unless the contrary is proved. The burden is discharged if, on a balance of probabilities, it is shown that as a matter of fact the vehicle had been transferred but not yet registered to a de facto owner, a beneficial owner or a possessory owner. Such a owner though not registered for the practical purpose maybe more relevant than in whose name the vehicle is registered.”
The position taken by this court in Joel Muga opija (supra) and Muhambi Koja (supra) appears to us to accord with modern thinking and jurisprudence where the law is encouraging courts to interpret the law governed more by substance that the technical chains of form, the latter which does not ordinarily look at the justice of a case.”
14. The Appellant did provide proof of transfer of ownership of several motorcycles to Seed of hope fund Ltd , through the delivery note and Tax invoice addressed to the said purchaser, and this occurred on 13/04/2021 about two years before the accident in question did occur. To my mind, this evidence did on a balance of probability prove that the suit motorcycle had been sold and as stated by Kimaru J in William Kabogo Gitau Vs George Thuo & 2 others (2010) 1 klr 526 s;
“ In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleased 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 opposite party is said to have established his case on a balance of probabilities . He has established that it is probable than not that the allegation that he made has occurred.
15. The finding of the learned trial court to the effect that the appellant did not prove the said suit motorcycle to Seeds of hope fund Ltd was thus an error, which this court has to correct. Finally, on liability though not stated in the judgment, it follows that it is only the 2 nd respondent who will bear the sole responsibility of settling the decretal sum.
C . DISPOSITION
12. Flowing from the above I do find that this Appeal has merit. The judgment/decree issued in MILIMANI SCCC NO 5248/2023 dated 15 th January 2025 as against the Appellant is hereby set aside in it entirety.
13. The Appellant is awarded costs of the primary suit, but each party will bear their own costs of this Appeal
14. It is so ordered.
Dated, signed, and delivered in open court at this 18 th day of MAY 2026.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Team this 18 th day of MAY 2026.
In the presence of : -
……………………N/A……………………………..Appellant
………………………N/A…………………………. Respondent
………………………JARSO……………………….Court Assistant
HCCA NO. E126 OF 2024 2