1. The respondent filed a suit in the lower court against the appellants seeking General damages, Special damages and cost-plus interest arising from a motor vehicle accident which occurred on 10th January 2018. The accident happened along Magadi road near Kimani Junction involved motor vehicle registration number KBF 441A wherein the respondent sustained injuries particularized in paragraph 7 of the plaint and blames the appellant for the accident.
2. The 1st and 2nd appellant filed their defence and denied the occurrence of the accident and that if it did happen as alleged, then same was occasioned by the negligence of the 1st respondent.
3. After hearing respondent and the appellants, the trial court in judgement delivered on 9th November 2021 found the appellants liable and assessed the quantum of general damages payable at Ksh 2,000,000 plus 11,950 being special damages.
4. Dissatisfied with the judgement of the trial court, the appellant filed the present appeal setting out the following grounds;
1 THAT the Honourable Magistrate erred in law and fact in dismissing the 1st and 2nd appellants/Defendants defence against the weight of the evidence adduced.
2 THAT the Honourable magistrate erred in law and in fact in failing to consider the evidence adduced by the 1st and 2nd appellants and contained in the pleadings
3 THAT the Honourable magistrate erred in law and fact in finding the 1st and 2nd appellants liable for negligence yet the plaintiffs own evidence indicated that he was to blame for the accident.
4 THAT the Honourable magistrate erred in law and in fact in finding that the appellants liable for negligence despite evidence being adduced that they were not in possession and control of the accident motor vehicle.
5 THAT the Honourable magistrate erred in law and in fact in failing to consider the evidence adduced by the appellants that they had sold the accident motor vehicle at the time of the accident.
6 THAT the Honourable magistrate erred in al and fact in awarding general damages that were extremely high and contrary to law.
7 THAT the Honourable magistrate erred in law and in fact by finding the appellants wholly liable for the accident giving rise to the cause of action.
8 THAT the Honourable magistrate erred in law and in fact in awarding special damages in the absence of receipts to prove the same.
9 THAT the Honourable Magistrate erred in law and in fact in failing to find that the plaintiff had not proved his case against the appellants who did not offer evidence contradicting the appellants.
10 THAT the Honourable magistrate erred in law and if fact in failing to consider the appellants submissions.
11 THAT the Honourable Magistrate erred in law and in fact in condemning the appellants to pay the cost of the suit.
5. The appellants therefore pray that the judgement/Decree in Kajiado CMCC 190 of 2018 be set aside and the respondent suit against the appellant be dismissed.
6. The appeal was canvassed by way of written submissions which counsel for the parties duly filed.
7. Briefly, the appellants contend before this court and in the magistrate court that at all material times to the alleged accident of 10th January 2018, they had sold motor vehicle registration number KBF 441A to Kisrona Ltd who together with UNAITAS SACCO were the duly registered and lawful owners of the same at the time of the accident. It is therefore submitted that at the material time, the appellants were not the registered and/or beneficial owners of the said motor vehicle and had no knowledge of the accident and could possibly not be held liable. The evidence of DW1 Kenfrey Mutwiri given on 2nd September 2021 was that at the time of the accident he had already sold the vehicle to Kisrona Ltd and produced documents as exhibits. The purchase of the vehicle by Kisrona Ltd was financed by UNAITAS Sacco which paid Ksh 900,000/ in two cheques of ksh 400,000 and ksh 500,000 on 21st September 2017.
8. The appellants submit that their testimonies before the magistrate court were corroborated by production of documentary evidence such as a letter to the Manager Unaitas dated 15th September 2017, a copy of the police abstract, copy of records from the registrar of motor vehicles, transfer of ownership of motor vehicle KBF 441A, which was completed on 22nd September 2017, co-operative Bank transaction slip and two co-p banks cheques dated 21st September 20217. Indeed, it submitted that the motor vehicle records dated 17th January 2018 shows the appellants as previous owners and Unaitas Savings and Credit Co-operative Society Limited and Kisrona Limited as the current owners.
9. On the other hand, the respondent while supporting the findings and determination of the Learned magistrate on liability and quantum, contend that the appellants failed to provide any formal documentation such as signed sale agreement, transfer documents or official registration changes to confirm that the vehicle had changed hands at the time of the accident. The respondent urges the court to dismiss the appeal as the same is devoid of merit.
10. In my view, one Central issue that this court must address its mind to in this appeal before venturing further is one of liability. A tort of negligence attaches when a person acts carelessly, fails to meet the expected standard of care as a result causes injury to a third party resulting in compensable damage. Negligence therefore attaches where a duty of care owed to a claimant is breached resulting in harm.
11. In this regard, the respondent persuaded the court below that the appellants owed him a duty of care which was breached resulting in the injuries for which an award of damage was made.
12. This being the first appellate court, it is the duty of this court to re-evaluate the evidence and come up with its own conclusions bearing in mind that it should not interfere with the findings of the trial court unless the same were based on no evidence or on misapprehension of the evidence or the trial court applied the wrong principles in reaching its findings. (See Selle & Another v Associated Motor Boat Co. Ltd & Another (1968) EA 123.
13. On liability, the Respondent under section 107,108, and 109 of the evidence Act, bears the burden of proof, to establish the existence of facts in issue. See the Case of Antony Francis Wareham t/a AF Wareham &2 others vs Kenya Post Office Bank [2004] eklr and further Henderson v E Jenkins & Sons [1970] AC 282 as Quoted in Nandwa v Kenya NaziLtd [1988] eklr the Court of Appeal stated as follows;
“In an action for negligence the plaintiff must allege, and has the burden of proving, that the accident was caused by the negligence on the part of the defendants. That is the issue throughout the trial, and in giving judgement at the end of the trial the judge had to decide whether he is satisfied on a balance of probabilities that the accident was caused by the negligence on the part of the defendants, and if he is not so satisfied the plaintiff action fails. The formal burden of proof does not shift”
14. I have reviewed the evidence before the magistrate court and the documents relied on by the parties in their respective case. The respondent relied on the following list of documents;
1 police abstract dated 13th January 2018
2 copy of records for Motor vehicle reg. no KBF 441A
3 Demand letter and statutory notice both dated 17th January 2018
4 Treatment notes from Mariakani cottage hospital
5 P3 form, Medical report from Dr Okoth Okere dated 22nd January 2018 and
6 Receipts for special damages of ksh. 11,950.
15. The Copy of the record of Motor vehicle reg No.KBF 441A date dated 17th January 2018 indicate that the appellants are the “previous owner” of the aforesaid motor vehicle and that the current owner is not shown.
16. On their part, the appellants relied on the following documents in their defence;
1 Letter to manager Unaitas Bank;
2 Copy of the police abstract
3 Copy of records from the registrar of motor vehicles and its receipt.
4 Transfer of ownership of Motor Vehicle Reg No KBF 441A
5 Co-operative Bank Transaction receipts, and
6 Co-operative Bank cheques No 009533 and 009534.
17. All these documents were relied on by the parties during the hearing of the suit without any objection being raised or recorded. And from the evidence in chief of DW1 KENFREY MUTWIR NKONGE and cross examination, it was clear that, the ownership of the motor vehicle KBF441A had changed from Orokise Co-operative Savings & credit society ltd and Kenfrey Mutwiri Nkonge to Unaitas Savings and Credit Co-operative Society Limited and Kisrona Limited. Similarly, DW2 confirmed receipt of Ksh 900, 000 from Unaitas Sacco for purchase of the said vehicle which was paid in two cheques.
18. Faced with two sets of conflicting testimonies, of the respondent/plaintiff and the appellants/defendants, the learned magistrate found in favour of the respondent holding as follows;
“The 1st and 2nd Defendants denied being the legal owners of the suit motor vehicle when the alleged accident occurred. They further denied knowledge of the said accident and the 3rd Defendant being either their agent and/or driver and thus were not vicariously liable for his negligence and put the plaintiff to strict proof. They both argued the suit motor vehicle was sold to unaitas Sacco and Kisrona Limited at the time of the accident. However, they failed to produce any sale agreement and/or police abstract to substantiate their claim. The search result presented by the plaintiff at the time of filing suit indicate the 1st and 2nd Defendants as the registered owners of the suit motor vehicle”
19. It appears from the learned magistrate finding above that the search and/or documents filed by the respondent at the time of filing suit heavily weighed on her mind. This is because there was no mention and analysis by the court of the subsequent documents filed by the appellants which are at variance with the earlier documents filed. The court faulted the appellants for not producing sale agreement or police abstract to substantiate their claim. A police abstract is an official document issued to confirm in the context of this case, that an accident had occurred and the details thereon need to be corroborated by additional evidence. There cannot be two police abstract for the same accident. The respondent had after the accident obtained an abstract and the appellant could possibly not have been expected to bring another abstract over the same accident. While a sale agreement would without doubt be binding contract between the parties outlining the terms and condition including their obligations, it is not the only evidence of ownership especially of a motor vehicle.
20. Section 8 of the Traffic Act creates a rebuttable presumption of ownership of a motor vehicle. It states, “any person in whose name a vehicle is registered shall, unless the contrary is proved be deemed to be the owner of the vehicle” This section of the law has been interpreted to mean that registration of motor vehicle is not conclusive proof of ownership.
21. As stated earlier in this judgement, the gravamen of this appeal is whether or not the appellants were the registered owners of motor vehicle reg No KBF441A and if not whether liability would attach to them without proof of ownership. The appellants clearly denied ownership of the motor vehicle and provided evidence to show that they are no longer registered owners and yet it was the responsibility of the respondent, legally and by way of evidence, to proof on the face of documents availed that the appellants were still the owners of the vehicle. In the case of Thuranira Karauri vs Agnes Mocheche (1997) eklr the court stated;
“where ownership is denied it was incumbent on the plaintiff to place before the judge a certificate of search signed by the Registrar of Motor Vehicle showing the registered owner of the lorry”
22. In this case, there is evidence that although the appellants were registered owners of the said motor vehicle at some point in time, as evidence by a search conducted earlier by the respondent, the situation changed. The appellant was able to prove by production of documents and their testimony in court that the vehicle had been sold and transferred at the material time of the accident. There was no evidence before the trial court to support the finding of liability against the appellants.
23. The argument that the appellants ought to have taken third party proceedings and join a third party is in my view admitting that there was another beneficial owner of the vehicle. Third party proceedings apply where the defendant who has been properly and legally sued has a claim against a party not already a party to the suit that he is entitled to contributory or indemnity. Such is not the case in this matter.
24. I am satisfied that the learned magistrate misdirected herself in material aspect by finding in favour of the respondent despite the overwhelming evidence that the motor vehicle KBF441A had been sold and transferred to Unaitas Savings and Credit Co-operative Society Limited and Kisrona Limited.
25. I would not go into the quantum aspect of this appeal for the reason that I am satisfied that there is no cause of action against the appellants.
26. Consequently, the appeal succeeds.
1 The Judgement and Decree in Kajiado CMCC 190 of 2018 delivered on 9th November 2021 is hereby Set Aside.
2 The suit against the appellant/Defendant in the Magistrate court CMCC 190 of 2018 is Dismissed.
27. Although ordinarily Costs follow the event, it is a matter of judicial discretion and not an automatic punishment.
28. I therefore make an order that each party to bear own cost
2. The 1st and 2nd appellant filed their defence and denied the occurrence of the accident and that if it did happen as alleged, then same was occasioned by the negligence of the 1st respondent.
3. After hearing respondent and the appellants, the trial court in judgement delivered on 9th November 2021 found the appellants liable and assessed the quantum of general damages payable at Ksh 2,000,000 plus 11,950 being special damages.
4. Dissatisfied with the judgement of the trial court, the appellant filed the present appeal setting out the following grounds;
1 THAT the Honourable Magistrate erred in law and fact in dismissing the 1st and 2nd appellants/Defendants defence against the weight of the evidence adduced.
2 THAT the Honourable magistrate erred in law and in fact in failing to consider the evidence adduced by the 1st and 2nd appellants and contained in the pleadings
3 THAT the Honourable magistrate erred in law and fact in finding the 1st and 2nd appellants liable for negligence yet the plaintiffs own evidence indicated that he was to blame for the accident.
4 THAT the Honourable magistrate erred in law and in fact in finding that the appellants liable for negligence despite evidence being adduced that they were not in possession and control of the accident motor vehicle.
5 THAT the Honourable magistrate erred in law and in fact in failing to consider the evidence adduced by the appellants that they had sold the accident motor vehicle at the time of the accident.
6 THAT the Honourable magistrate erred in al and fact in awarding general damages that were extremely high and contrary to law.
7 THAT the Honourable magistrate erred in law and in fact by finding the appellants wholly liable for the accident giving rise to the cause of action.
8 THAT the Honourable magistrate erred in law and in fact in awarding special damages in the absence of receipts to prove the same.
9 THAT the Honourable Magistrate erred in law and in fact in failing to find that the plaintiff had not proved his case against the appellants who did not offer evidence contradicting the appellants.
10 THAT the Honourable magistrate erred in law and if fact in failing to consider the appellants submissions.
11 THAT the Honourable Magistrate erred in law and in fact in condemning the appellants to pay the cost of the suit.
5. The appellants therefore pray that the judgement/Decree in Kajiado CMCC 190 of 2018 be set aside and the respondent suit against the appellant be dismissed.
6. The appeal was canvassed by way of written submissions which counsel for the parties duly filed.
7. Briefly, the appellants contend before this court and in the magistrate court that at all material times to the alleged accident of 10th January 2018, they had sold motor vehicle registration number KBF 441A to Kisrona Ltd who together with UNAITAS SACCO were the duly registered and lawful owners of the same at the time of the accident. It is therefore submitted that at the material time, the appellants were not the registered and/or beneficial owners of the said motor vehicle and had no knowledge of the accident and could possibly not be held liable. The evidence of DW1 Kenfrey Mutwiri given on 2nd September 2021 was that at the time of the accident he had already sold the vehicle to Kisrona Ltd and produced documents as exhibits. The purchase of the vehicle by Kisrona Ltd was financed by UNAITAS Sacco which paid Ksh 900,000/ in two cheques of ksh 400,000 and ksh 500,000 on 21st September 2017.
8. The appellants submit that their testimonies before the magistrate court were corroborated by production of documentary evidence such as a letter to the Manager Unaitas dated 15th September 2017, a copy of the police abstract, copy of records from the registrar of motor vehicles, transfer of ownership of motor vehicle KBF 441A, which was completed on 22nd September 2017, co-operative Bank transaction slip and two co-p banks cheques dated 21st September 20217. Indeed, it submitted that the motor vehicle records dated 17th January 2018 shows the appellants as previous owners and Unaitas Savings and Credit Co-operative Society Limited and Kisrona Limited as the current owners.
9. On the other hand, the respondent while supporting the findings and determination of the Learned magistrate on liability and quantum, contend that the appellants failed to provide any formal documentation such as signed sale agreement, transfer documents or official registration changes to confirm that the vehicle had changed hands at the time of the accident. The respondent urges the court to dismiss the appeal as the same is devoid of merit.
10. In my view, one Central issue that this court must address its mind to in this appeal before venturing further is one of liability. A tort of negligence attaches when a person acts carelessly, fails to meet the expected standard of care as a result causes injury to a third party resulting in compensable damage. Negligence therefore attaches where a duty of care owed to a claimant is breached resulting in harm.
11. In this regard, the respondent persuaded the court below that the appellants owed him a duty of care which was breached resulting in the injuries for which an award of damage was made.
12. This being the first appellate court, it is the duty of this court to re-evaluate the evidence and come up with its own conclusions bearing in mind that it should not interfere with the findings of the trial court unless the same were based on no evidence or on misapprehension of the evidence or the trial court applied the wrong principles in reaching its findings. (See Selle & Another v Associated Motor Boat Co. Ltd & Another (1968) EA 123.
13. On liability, the Respondent under section 107,108, and 109 of the evidence Act, bears the burden of proof, to establish the existence of facts in issue. See the Case of Antony Francis Wareham t/a AF Wareham &2 others vs Kenya Post Office Bank [2004] eklr and further Henderson v E Jenkins & Sons [1970] AC 282 as Quoted in Nandwa v Kenya NaziLtd [1988] eklr the Court of Appeal stated as follows;
“In an action for negligence the plaintiff must allege, and has the burden of proving, that the accident was caused by the negligence on the part of the defendants. That is the issue throughout the trial, and in giving judgement at the end of the trial the judge had to decide whether he is satisfied on a balance of probabilities that the accident was caused by the negligence on the part of the defendants, and if he is not so satisfied the plaintiff action fails. The formal burden of proof does not shift”
14. I have reviewed the evidence before the magistrate court and the documents relied on by the parties in their respective case. The respondent relied on the following list of documents;
1 police abstract dated 13th January 2018
2 copy of records for Motor vehicle reg. no KBF 441A
3 Demand letter and statutory notice both dated 17th January 2018
4 Treatment notes from Mariakani cottage hospital
5 P3 form, Medical report from Dr Okoth Okere dated 22nd January 2018 and
6 Receipts for special damages of ksh. 11,950.
15. The Copy of the record of Motor vehicle reg No.KBF 441A date dated 17th January 2018 indicate that the appellants are the “previous owner” of the aforesaid motor vehicle and that the current owner is not shown.
16. On their part, the appellants relied on the following documents in their defence;
1 Letter to manager Unaitas Bank;
2 Copy of the police abstract
3 Copy of records from the registrar of motor vehicles and its receipt.
4 Transfer of ownership of Motor Vehicle Reg No KBF 441A
5 Co-operative Bank Transaction receipts, and
6 Co-operative Bank cheques No 009533 and 009534.
17. All these documents were relied on by the parties during the hearing of the suit without any objection being raised or recorded. And from the evidence in chief of DW1 KENFREY MUTWIR NKONGE and cross examination, it was clear that, the ownership of the motor vehicle KBF441A had changed from Orokise Co-operative Savings & credit society ltd and Kenfrey Mutwiri Nkonge to Unaitas Savings and Credit Co-operative Society Limited and Kisrona Limited. Similarly, DW2 confirmed receipt of Ksh 900, 000 from Unaitas Sacco for purchase of the said vehicle which was paid in two cheques.
18. Faced with two sets of conflicting testimonies, of the respondent/plaintiff and the appellants/defendants, the learned magistrate found in favour of the respondent holding as follows;
“The 1st and 2nd Defendants denied being the legal owners of the suit motor vehicle when the alleged accident occurred. They further denied knowledge of the said accident and the 3rd Defendant being either their agent and/or driver and thus were not vicariously liable for his negligence and put the plaintiff to strict proof. They both argued the suit motor vehicle was sold to unaitas Sacco and Kisrona Limited at the time of the accident. However, they failed to produce any sale agreement and/or police abstract to substantiate their claim. The search result presented by the plaintiff at the time of filing suit indicate the 1st and 2nd Defendants as the registered owners of the suit motor vehicle”
19. It appears from the learned magistrate finding above that the search and/or documents filed by the respondent at the time of filing suit heavily weighed on her mind. This is because there was no mention and analysis by the court of the subsequent documents filed by the appellants which are at variance with the earlier documents filed. The court faulted the appellants for not producing sale agreement or police abstract to substantiate their claim. A police abstract is an official document issued to confirm in the context of this case, that an accident had occurred and the details thereon need to be corroborated by additional evidence. There cannot be two police abstract for the same accident. The respondent had after the accident obtained an abstract and the appellant could possibly not have been expected to bring another abstract over the same accident. While a sale agreement would without doubt be binding contract between the parties outlining the terms and condition including their obligations, it is not the only evidence of ownership especially of a motor vehicle.
20. Section 8 of the Traffic Act creates a rebuttable presumption of ownership of a motor vehicle. It states, “any person in whose name a vehicle is registered shall, unless the contrary is proved be deemed to be the owner of the vehicle” This section of the law has been interpreted to mean that registration of motor vehicle is not conclusive proof of ownership.
21. As stated earlier in this judgement, the gravamen of this appeal is whether or not the appellants were the registered owners of motor vehicle reg No KBF441A and if not whether liability would attach to them without proof of ownership. The appellants clearly denied ownership of the motor vehicle and provided evidence to show that they are no longer registered owners and yet it was the responsibility of the respondent, legally and by way of evidence, to proof on the face of documents availed that the appellants were still the owners of the vehicle. In the case of Thuranira Karauri vs Agnes Mocheche (1997) eklr the court stated;
“where ownership is denied it was incumbent on the plaintiff to place before the judge a certificate of search signed by the Registrar of Motor Vehicle showing the registered owner of the lorry”
22. In this case, there is evidence that although the appellants were registered owners of the said motor vehicle at some point in time, as evidence by a search conducted earlier by the respondent, the situation changed. The appellant was able to prove by production of documents and their testimony in court that the vehicle had been sold and transferred at the material time of the accident. There was no evidence before the trial court to support the finding of liability against the appellants.
23. The argument that the appellants ought to have taken third party proceedings and join a third party is in my view admitting that there was another beneficial owner of the vehicle. Third party proceedings apply where the defendant who has been properly and legally sued has a claim against a party not already a party to the suit that he is entitled to contributory or indemnity. Such is not the case in this matter.
24. I am satisfied that the learned magistrate misdirected herself in material aspect by finding in favour of the respondent despite the overwhelming evidence that the motor vehicle KBF441A had been sold and transferred to Unaitas Savings and Credit Co-operative Society Limited and Kisrona Limited.
25. I would not go into the quantum aspect of this appeal for the reason that I am satisfied that there is no cause of action against the appellants.
26. Consequently, the appeal succeeds.
1 The Judgement and Decree in Kajiado CMCC 190 of 2018 delivered on 9th November 2021 is hereby Set Aside.
2 The suit against the appellant/Defendant in the Magistrate court CMCC 190 of 2018 is Dismissed.
27. Although ordinarily Costs follow the event, it is a matter of judicial discretion and not an automatic punishment.
28. I therefore make an order that each party to bear own cost