1. The appellant sued the respondent claiming general damages as result of an accident that happened on 6.2.2015 involving Motor Vehicle Registration Number KVK 631 and the Appellant.
2. The appellant had sued the respondent as the owner of the motor vehicle owing to the death of Evans Njuraita a minor who was a passenger at the time of the accident.
3. During the hearing the plaintiff testified confirming that an accident occurred as pleaded in the paint.
4. According to the appellant she proved and demonstrated that the said motor vehicle was owned by the respondent as at the time of the accident.
5. The Defence denied liability calling DW 1 who produced the police Abstract that documented the accident.
6. After hearing, the suit was dismissed on 1.11.22 on the ground that the appellant did not prove that the motor vehicle belonged to the Respondent.
7. That has precipitated the filing an appeal which was subsequently amended on 14th December 2022.The appellant wants the court to set aside the judgment.
8. On its part the respondent vehemently opposes the appeal and submits that the records of NTSA clearly show that the vehicle belongs to a third party and that the trial court did not fall into error in dismissing the suit.
9. Having considered the record of appeal, the judgment of the trial court, the grounds of appeal and the submissions of the parties, the following issues arise for determination:
1) Whether the appeal has merit.
2) Who shall bear the costs.
10. This being a first appeal, the duty of this Court is to reconsider and re-evaluate the evidence placed before the trial court and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify.
11. In Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA, The court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
12. 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..."
13. This principle was restated in Peters v Sunday Post Ltd [1958] EA 424, where the Court held that an appellate court will not ordinarily interfere with findings of fact by a trial court unless it is satisfied that the conclusion reached was clearly wrong.
14. The beginning point in the analysis of the issue whether the appeal has merit is guided and informed by Section 8 of the Traffic Act which provides:-
“The person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle.”
15. In the case of Thuranira Karauri vs Agnes Ncheche [1995 – 1998] IEA 57 where the Court of Appeal held,
“As for the defendant's ownership, it is incumbent on the plaintiff to place before the Judge, a Certificate of Search signed by the registrar showing the registered owner of the lorry.”
16. In Miller–vs- Minister Of Pensions [1947]2 All ER 372. discussing the burden of proof where he said:-
“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.”
17. Sections 107 of the Evidence Act (Cap 80 Laws of Kenya) stipulates that when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
18. It is trite law that the ownership of a motor-vehicle has to be proved by the person asserting the position.
19. Section 8 of the Traffic Act has is clear that the registration of the motor-vehicle is not conclusive proof of ownership. It creates a rebuttable presumption.
20. In the case of Osapil vs Kaddy [2000] 1 EALA 187 the Court of Appeal of Uganda held that a registration card or logbook was only prima-facie evidence of title to a motor vehicle. The person in whose name the vehicle was registered was presumed to be the owner thereof unless proved otherwise.
21. This Court adopted the interpretation above in the case of Securicor Kenya Ltd vs Kyumba Holdings Civil Appeal No. 73 of 2002 (Tunoi, O’Kubasu’ Deverell JJ.A) and held that;
“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.
22. In the case of Joel Muga Opinja v. East Africa Sea Food Ltd [2013] eKLR restated this position 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”
23. All this goes to show that the presumption that the person registered as owner of a motor vehicle in the log book is the actual owner.
24. In the instant case, the police abstract shows that the motor vehicle is owned by the respondent .The police abstract was produced by PW 3.
25. The court takes judicial notice of the fact that a police abstract is distinct from the NTSA records. It is a traffic police related document that is initially blank. Once filed, many critical particulars are entered and posted into it by the investigating officer upon conducting investigations.
26. They includes entries like the date of the accident, the registration number of the owner of the motor vehicle, the insurer, persons involved in the accident, the place where the accident happened, inter alia.
27. In this case the court is satisfied that the motor vehicle belonged to the Respondent as set out in the police abstract.
Determination;
28. It is this court's finding that The Appellant has successfully rebutted the prima facie evidence on ownership as stipulated under Section 8 of the Traffic Act and I so hold.
Costs;
29. In the case of Republic vs Rosemary Wairimu Munene, Ex-Parte Applicant vs Ihururu Dairy Farmers Cooperative Society Ltd Judicial Review application no 6 of 2014 where the court held as follows: -
“The issue of costs is the discretion of the court as provided under the above section. The basic rule on attribution of costs is that costs follow the event....... It is well recognized that the principle costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case.”
30. The appellant is entitled to costs.
Order:
The appeal is allowed in the following terms;
1. The Motor Vehicle was owned by the Respondent who shall shoulder liability.
2. The suit will be heard freshly before a different Magistrate on a priority basis for purposes of general damages.
3. Costs to the appellant.
Dated, Signed and Delivered Virtually at Eldoret this day of 31st July, 2026.
2. The appellant had sued the respondent as the owner of the motor vehicle owing to the death of Evans Njuraita a minor who was a passenger at the time of the accident.
3. During the hearing the plaintiff testified confirming that an accident occurred as pleaded in the paint.
4. According to the appellant she proved and demonstrated that the said motor vehicle was owned by the respondent as at the time of the accident.
5. The Defence denied liability calling DW 1 who produced the police Abstract that documented the accident.
6. After hearing, the suit was dismissed on 1.11.22 on the ground that the appellant did not prove that the motor vehicle belonged to the Respondent.
7. That has precipitated the filing an appeal which was subsequently amended on 14th December 2022.The appellant wants the court to set aside the judgment.
8. On its part the respondent vehemently opposes the appeal and submits that the records of NTSA clearly show that the vehicle belongs to a third party and that the trial court did not fall into error in dismissing the suit.
9. Having considered the record of appeal, the judgment of the trial court, the grounds of appeal and the submissions of the parties, the following issues arise for determination:
1) Whether the appeal has merit.
2) Who shall bear the costs.
10. This being a first appeal, the duty of this Court is to reconsider and re-evaluate the evidence placed before the trial court and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify.
11. In Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA, The court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
12. 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..."
13. This principle was restated in Peters v Sunday Post Ltd [1958] EA 424, where the Court held that an appellate court will not ordinarily interfere with findings of fact by a trial court unless it is satisfied that the conclusion reached was clearly wrong.
14. The beginning point in the analysis of the issue whether the appeal has merit is guided and informed by Section 8 of the Traffic Act which provides:-
“The person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle.”
15. In the case of Thuranira Karauri vs Agnes Ncheche [1995 – 1998] IEA 57 where the Court of Appeal held,
“As for the defendant's ownership, it is incumbent on the plaintiff to place before the Judge, a Certificate of Search signed by the registrar showing the registered owner of the lorry.”
16. In Miller–vs- Minister Of Pensions [1947]2 All ER 372. discussing the burden of proof where he said:-
“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.”
17. Sections 107 of the Evidence Act (Cap 80 Laws of Kenya) stipulates that when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
18. It is trite law that the ownership of a motor-vehicle has to be proved by the person asserting the position.
19. Section 8 of the Traffic Act has is clear that the registration of the motor-vehicle is not conclusive proof of ownership. It creates a rebuttable presumption.
20. In the case of Osapil vs Kaddy [2000] 1 EALA 187 the Court of Appeal of Uganda held that a registration card or logbook was only prima-facie evidence of title to a motor vehicle. The person in whose name the vehicle was registered was presumed to be the owner thereof unless proved otherwise.
21. This Court adopted the interpretation above in the case of Securicor Kenya Ltd vs Kyumba Holdings Civil Appeal No. 73 of 2002 (Tunoi, O’Kubasu’ Deverell JJ.A) and held that;
“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.
22. In the case of Joel Muga Opinja v. East Africa Sea Food Ltd [2013] eKLR restated this position 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”
23. All this goes to show that the presumption that the person registered as owner of a motor vehicle in the log book is the actual owner.
24. In the instant case, the police abstract shows that the motor vehicle is owned by the respondent .The police abstract was produced by PW 3.
25. The court takes judicial notice of the fact that a police abstract is distinct from the NTSA records. It is a traffic police related document that is initially blank. Once filed, many critical particulars are entered and posted into it by the investigating officer upon conducting investigations.
26. They includes entries like the date of the accident, the registration number of the owner of the motor vehicle, the insurer, persons involved in the accident, the place where the accident happened, inter alia.
27. In this case the court is satisfied that the motor vehicle belonged to the Respondent as set out in the police abstract.
Determination;
28. It is this court's finding that The Appellant has successfully rebutted the prima facie evidence on ownership as stipulated under Section 8 of the Traffic Act and I so hold.
Costs;
29. In the case of Republic vs Rosemary Wairimu Munene, Ex-Parte Applicant vs Ihururu Dairy Farmers Cooperative Society Ltd Judicial Review application no 6 of 2014 where the court held as follows: -
“The issue of costs is the discretion of the court as provided under the above section. The basic rule on attribution of costs is that costs follow the event....... It is well recognized that the principle costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case.”
30. The appellant is entitled to costs.
Order:
The appeal is allowed in the following terms;
1. The Motor Vehicle was owned by the Respondent who shall shoulder liability.
2. The suit will be heard freshly before a different Magistrate on a priority basis for purposes of general damages.
3. Costs to the appellant.
Dated, Signed and Delivered Virtually at Eldoret this day of 31st July, 2026.