'
( Being an appeal from the Judgment/Decree and Orders of Hon. J.P Mkala-RM & Adjudicator dated 16 th August 2024 in Siaya CMCC No. E078 of 2023-Peter Ochieng Onyango vs Lucas Onyango Obaro, CPL James Maina Muchemi, Treal Limited & Inspector General of Police)
The Appeal arises from the Judgment/Decree and Orders of Hon. J.P Mkala -RM & Adjudicator dated 16 th August 2024 in Siaya CMCC No. E078 of 2023 wherein he entered judgement in favour of the 1 st Respondent against the 1 st , 2 nd and 3 rd Appellant inter alia; that they should return the suit motor vehicle to the 1 st Respondent within 30 days failing which they should pay the sum of Kshs 700, 000/ ( being the value of the suit vehicle) less Kshs 200, 000/ making a sum of Kshs 500, 000/; General damages of Kshs 50, 000/ be paid by the 2 nd Appellant personally to the 1 st Respondent; the case against the 2 nd Respondent was dismissed with no order as to costs; the 1 st , 2 nd and 3 rd Appellants to pay the costs of the suit plus interest at court rates.
Aggrieved, the 1 st , 2 nd and 3 rd Appellants filed their in their Memorandum of Appeal dated 16 th September 2024 wherein they raised the following grounds of appeal:
The learned trial Magistrate erred in law and misdirected himself in finding the 1 st Respondent (Plaintiff) had purchased motor vehicle registration number KAD 213M (the suit motor vehicle) on the basis of conjecture and speculation.
The learned trial Magistrate erred in law and misdirected himself when he framed questions to the 1 st and 2 nd Appellants'' witness, denied the witness an opportunity to explain using leading questions, effectively descending to the arena of dispute and tilting the trial in favour of the Plaintiff to the prejudice of the Appellants.
The learned trial Magistrate erred in law by relying on secondary evidence without a basis, despite the Appellants'' well-founded objections, which were overruled.
The learned trial Magistrate erred in law by relying on controverted and contradictory evidence by the Plaintiff, which raised serious questions on the credibility of his evidence
The learned trial Magistrate erred in law by disregarding the evidence led by the 2 nd Appellant and framing his questions and making conclusions based on conjecture
The learned trial Magistrate erred in law in failing to appreciate the fact that the onus of proof was on the 1 st Respondent and therefore shifted the burden by expecting the Appellants to prove their ownership beyond registration documents and the value of the motor vehicle as Defendants
The learned trial Magistrate erred in law and fact by finding that the 1 st Respondent had proved on a balance of probabilities that he is the owner of motor vehicle registration number KAD 213M without proof of any essentials of contract, proof of payment of any utility, including repair costs, insurance costs, and motor vehicle inspection costs
The learned trial Magistrate erred in law in failing to properly consider, evaluate, and analyse the evidence on record.
The Appellant prays that the judgment be set aside and substituted with a dismissal of the Plaintiff''s suit with costs. The Appellant seeks the costs of this appeal.
In the Plaint dated 1 st December 2023 , the 1 st Respondent prayed for judgment against the Defendants jointly and/or severally for: The Defendants are compelled to return the said motor vehicle in the same condition it was at the time they towed the said motor.
In the alternative, the Defendants are to pay the value of the said motor vehicle;
Loss of user at a rate of Kshs. 50,000.00 per month from 15/10/.2021
Interest on the said damages at such rate and for such a period as the court deems fit;
Costs of the suit;
Any other relief the court deems fit to grant.
The 1 st Respondent contended that at the material time, the 2 nd Appellant was the beneficial owner of motor vehicle KAD 213 M, having purchased the same from Treal Limited sometime in late 2016. According to the 1 st Respondent, the 1 st Appellant who was the director of Treal Limited duly furnished him with the original copies of the Certificate of Registration duly filed transfer form by the 1 st Appellant and stamped by official stamp of Treal Limited, certificate of change of name, certificate of incorporation and KRA Pin Certificate to enable the Plaintiff to effect transfer of the said motor vehicle. It is pleaded that at the time of purchase, the said motor vehicle was in dire need of repair having been involved in a road traffic accident and was parked at Namo Italiano (K) Limited Garage at Kisumu. He repaired the motor vehicle. According to the 1 st Respondent, on 15 th October 2021 at around noon, he was summoned by the 2 nd Appellant, a police officer attached to Ng’iya police Patrol Base, as a result of a complaint by the 1 st Appellant on allegations that he had stolen the motor vehicle. That the 2 nd Appellant demanded that the Plaintiff produce a certificate of Registration and a sale agreement pending investigation, lest he be put in custody. He produced the documents, but after a while, the 2 nd Appellant informed the 1 st Respondent that he had received Kshs. 200,000.00 from the 1 st Appellant to his M-Pesa line 0723 656 393. The 1 st Respondent was directed by the 2 nd Appellant to withdraw Kshs. 10,000.00. The 1 st Respondent pleaded that on the same day at around 9.00 am, the 1 st and 2 nd Appellants, in the presence of other unknown people, towed the motor vehicle from his compound, and when the 1 st Respondent objected, he was told by the 2 nd Appellant that it was being towed to the police station pending investigations. It was pleaded that he learnt that no complaint was made at Ngiya Police Patrol Base or any other police station but that the 1 st and 2 nd Appellants colluded and/or conspired to steal the 1 st Respondent’s motor vehicle KAD 213M from him and deprive him of ownership by the abuse of office by the 2 nd Appellant. He pleaded that he was deprived of ownership and the loss of the said motor vehicle.
The Appellants filed a joint Statement of Defence dated 7 th March 2021. The 1 st and 3 rd Appellants'' case is that they had contracted the 1 st Respondent to tow the motor vehicle to Nairobi in Kitengela, and that they did not sell the motor vehicle. It was pleaded that the 1 st Respondent had attempted to convert the 3 rd Appellant’s motor vehicle on the basis of possession, which had become unlawful when he refused to release the motor vehicle. Accordingly, the money demanded of Kshs. 200,000.00 by the 1 st Respondent was money expended in the process of moving the motor vehicle from Nam Italiano garage to his home, which the 1 st Appellant settled, though exorbitant. On his part, the 2 nd Appellant denied that he orchestrated the towing. He did not book the claim since the 1 st Appellant had not made an official report to the police, as the 1 st Appellant and 1 st Respondent had agreed to resolve the dispute outside court. The 2 nd Appellant herein denied that the Inspector General of Police committed any wrongdoing against the 1 st Respondent. They urged the learned trial Magistrate to dismiss the 1 st Respondent’s case with costs.
Through the Attorney General, the 2 nd Respondent filed a Statement of Defence dated 20 th March 2024 wherein it was pleaded that on 15 th October 2021 a complaint was made by the 1 st Appellant against the 1 st Respondent at Ng’iya Police Base through his agent concerning a motor vehicle but due lack of ownership documents, the 1 st Appellant and the 1 st Respondent were advised to report the matter to the Directorate of Criminal Investigations. Instead, the 1 st Respondent instituted a suit which is the subject of this appeal by the Appellants. The particulars of intimidation, threats, abuse of office and collusion with the 1 st Appellant to deprive the 1 st Respondent of the motor vehicle were denied.
This being the first appellate court, its duty is well spelt out namely, to re-evaluate the evidence tendered before the trial court and subject it to an independent analysis so as to
PW1 Josephat Kamau Principal Officer with Primedots Assessors stated that he undertook a valuation of the motor vehicle KAD 213M under the instructions of the 1 st Respondent, the owner of the vehicle. They gave a Pre-Theft valuation report dated 15/4/2024 of the vehicle at Kshs. 700,000.00. They charged Kshs. 5000 for preparing the report as professional fees and Kshs. 5,000 as court attendance fee. According to PW1, the vehicle having reached age of 29 years, it was at the plateau stage where the value is determined by demand and supply. They took two values of a well-maintained vehicle in the open market and made an average. On being cross-examined, PW1 told court that he signed the report though his name does not appear in the report. He stated that he did not inspect the motor vehicle. He stated that he was provided with a logbook. According to PW1, the 1 st Respondent was the beneficial owner. He stated that it was not indicated that there is a police officer who owns it.
Peter Ochieng Onyango (PW2) was the 1 st Respondent herein who adopted his witness statement dated 1/12/2023 as his evidence in chief. He produced all the documents as exhibits, save for the transfer of ownership which the trial Court allowed for its production vide a ruling. He stated that Cpl James Maina Muchemi asked him to send Kshs. 2,000 to facilitate him in looking after the truck. He stated that he had not authorized the release of the motor vehicle to Lucas whom he had not talked to for almost four years. On being cross-examined, he stated that he brought a copy of the logbook because the original documents were with Mr. Muchemi. He stated that the registration indicated that the car belonged to Transcorp Limited. He stated that it was Lucas Onyango who gave him the transfer after he filed and stamped it with the stamp of Treal Limited, though he did not sign. He stated that he had not transferred the motor vehicle to himself since he had not gotten the money to transfer it. He stated that he had repaired the motor vehicle since it had been involved in an accident. That he bought the motor vehicle at Kshs. 500,000.00 though a receipt was not given. He stated that he did not have a sale agreement between him and Lucas, though he bought the motor vehicle through installments. That Lucas gave him an acknowledgment of payment. He stated that Lucas prepared the sale agreement. He stated that Muchemi took his documents by force, but that he did not report. He stated that he received Kshs. 200,000.00, though he did not want it. That Muchemi forced him to send Kshs. 10,000.00. That he withdrew the money from M-Pesa. He told the court that he had never used the car since he had repaired it. On being cross-examined, PW2 told the court that he sued the 2 nd Respondent herein because of what the 2 nd Appellant did. He reported to IPOA. On re-examination, PW2 stated that Cpl Maina Muchemi handcuffed him until he gave money. That he did not report since he didn’t know the procedure and was not given an OB.
In the defence case, DW1, the 2 nd Appellant adopted his witness statement dated 27/3/24 as his evidence in chief. On being cross-examined, he stated that PW2 did not produce any document at the police station. He stated that he did not received any money from PW2, but that he received Kshs. 2,030.for pishori rice, which he used to sell within Siaya as his side hustle job, though he did not have any evidence to show that the money was for rice or that he operated a business of selling rice. He stated that he did not record the report as he received the complaint over the phone. He told the court that it was not minuted and it was not known to his superior. He denied having breached Clause 5 of the Police Standing Orders. He stated that there was no official complaint made at the station. On re-examination, he stated that he did not report the complaint since the complainant was not around and that he was to personally bring documents. That he did not report the information to his superior since there was no formal complaint and that the parties had already agreed.
Eddy Odhiambo Ouma (DW2) , testified that he is Teal Limited Director and that the company was the owner of the motor vehicle in issue. He stated that he was testifying on behalf of Lucas Onyango Obaro, who had been hospitalized at St. Paul’s Hospital, Kitengela. He adopted Lucas’s statement dated 7 th March 2024 as the 3 rd Defendant’s evidence in chief. He produced a copy of the logbook and invoice from Namo Italiano as exhibits. On being cross-examined, he stated that he knew the Plaintiff through talking but had not met him in person. He denied the Plaintiff had been employed or earned a salary from the company. He stated that the motor vehicle was involved in an accident around 2012 and was released to the Plaintiff in 2017. He stated that the motor vehicle had been in a garage for six years. He stated that the invoice was not stamped or as paid as there was no receipt showing payment. He stated that it itemized the list of items that Namo Italiano had replaced, but did not indicate the items replaced. He stated that there were other items that had not been fixed to make the vehicle roadworthy, e.g., the entire dashboard, which has not been fixed to date. He stated that he did not have any pictures to show that some parts had not been fixed. He stated that it did not show that the Plaintiff did any repairs to the vehicle. That it was his testimony that the Plaintiff had been contracted to ferry the motor vehicle from Kisumu to Kitengela, though the agreement was oral. He stated that the pictures were taken outside the police station. He stated that the complaint was made to Ng’iya police, though the transaction never reached the OB Section. He stated that the officer had their complaint. It was further his testimony that the Plaintiff and Mr.Obaro negotiated and that the Plaintiff demanded Kshs. 300,000.00 but negotiated further and settled at Kshs. 200,000.00. He stated that the demand letter was not served to them. In re-examination, he stated that the Plaintiff was performing a service. He stated that the Plaintiff resisted delivering the motor vehicle which had never been fixed.
Upon the close of the defence case, and before the delivery of the judgment, the learned trial Magistrate directed parties to provide the documents of when Mr. Eddy Odhiambo Ouma became a Director within 14 days. Further, it was ordered that the Registrar of Companies supply certified copies of the registration documents and other documents contained in the file for Treal Limited, CPR/2010/32984.
Based on the issues for determination, framed in his judgment, the learned trial Magistrate found Eddy Odhiambo Ouma (DW2) who was the Managing Partner at OG Law LLP and Director of the 3 rd Appellant was not conflicted since he had never represented the 1 st and 3 rd Defendants (1 st and 3 rd Appellants herein) but Ms. Agina Advocate had always appeared for the 1 st , 2 nd and 3 rd Defendants, thus DW2 had the capacity to testify. As to who owned motor vehicle KAD 213M, the learned trial Magistrate found the 1 st Respondent had proved on a balance of probabilities that he had purchased the motor vehicle from the 1 st and 3 rd Defendants. According to the learned trial Magistrate, the 1 st Appellant gave the 1 st Respondent some documents which can only be for purposes of transferring the motor vehicle to the 1 st Respondent, and it was alarming why they waited for four years to come and claim the motor vehicle from the 1 st Respondent without having reported the alleged theft to the police. As to whether the 2 nd Appellant breached his duty, it was held that the 4th Defendant (2 nd Respondent) could not be held vicariously liable for the breaches committed by the 2 nd Appellant outside his official mandate. According to the learned trial Magistrate, the 2 nd Appellant knew what he was supposed to do, but went ahead to follow his own procedures. On the claim for loss of user, the learned trial Magistrate observed that the 1 st Respondent had admitted on evidence that the motor vehicle, having been involved in an accident, he was in the process of repairing it and it was not working, thus the claim was untenable and was dismissed. On the value of the motor vehicle, the learned trial Magistrate found the assessment value of Kshs. 700,000.00 for the motor vehicle was fair since the Defendants failed to provide an alternative valuation report despite being in possession of the motor vehicle
In the end, the learned trial Magistrate found the 1 st , 2 nd, and 3 rd Appellants jointly and severally liable in the following terms: The 1 st and 3 rd Appellants shall, within 30 days from the date of this judgment, return the motor vehicle registration number KAD 213M to the Plaintiff; failure to which they shall pay the sum of Kshs. 700,000.00, which is the value of the motor vehicle, less Kshs. 200,000.00, making it Kshs. 500,000.00;
The claim for loss of user be and is hereby dismissed.
The 2 nd Defendant is hereby found to have breached his duty, thereby occasioning loss to the Plaintiff
The 2 nd Defendant shall pay as general damages of Kshs. 50,000.00 personally to the Plaintiff.
The case against the 4 th Defendant (2 nd Respondent) be and is hereby dismissed with no orders as to costs.
The 1 st , 2 nd, and 3 rd Defendants shall pay the costs to the Plaintiff.
There shall be interest at the court’s rates from the date of the judgment until payment in full
Stay of execution for 30 days.
I have considered the appeal in light of the evidence on record and written submissions filed on behalf of the parties herein.
This being a first appeal, the role of this Court is to re-evaluate and subject the evidence to a fresh analysis to reach an independent conclusion as to whether or not to uphold the decision of the trial Court. The court also takes note of the fact that it did not have the benefit of seeing or hearing the witnesses testify and therefore has to make an allowance for the same. ( Selle vs. Associated Motor Boat Co. [1968] EA 123).
Odunga J. (as he then was) in China Wu Yi Company Limited vs Ronald Manthi David [2021] KEHC 1626 (KLR) stated that this Court is under a duty to delve at some length into factual details and revisit the facts as presented in the trial Court, analyze the same, evaluate it and arrive at its independent conclusions, but always remembering, and giving allowance for it, that the trial Court had the advantage of hearing the parties.
In Abok James Odera t/a A.J Odera & Associates vs John Patrick Machira t/a Machira & Co. Advocates [2013] e KLR , the duty of the first appellate court was also held thus;
“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess, and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way”
In Ephantus Mwangi and Another vs Duncan Mwangi Civil Appeal No. 77 of 1982 [1982-1988] 1KAR 278, the Court of Appeal held that:
“A member of an appellate court is not bound to accept the learned Judge’s findings of fact if it appears either that (a) he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or (b) if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”
The dispute between the parties herein revolves around ownership of motor vehicle registration number KAD 213M. Primarily, the grounds of appeal enumerated in the Memorandum of Appeal are seeking a determination on the question of motor vehicle ownership. The issues that are for determination are:
Whether the 1 st Respondent proved on a balance of probabilities that he is the owner of motor vehicle registration number KAD 213M;
Whether the trial Court erred in relying on secondary evidence by the 1 st Respondent without a basis.
What reliefs was the 1 st Respondent entitled to?
The legal burden of proof was on the 1 st Respondent to prove his claim on a balance of probabilities. It was therefore incumbent upon the 1 st Respondent to prove his assertions as pleaded in the Plaint.
Section 107(1) of the Evidence Act , Cap 80 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.
However, the burden may shift to the Defendant to disprove the alleged claim. This is the evidential burden of proof, which is well captured under Sections 109 and 112 of the Evidence Act. See Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334 .
The two concepts are well illustrated by the Court of Appeal in the case of Mbuthia Macharia v Annah Mutua & Another [2017] eKLR , that:
“The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes an evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced.” See Supreme Court in Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR,
The standard of proof is well captured in the case of Palace Investment Ltd v. Geoffrey Kariuki Mwenda & Another (2015) eKLR , where the Court held that:
Denning J. in Miller v 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 is more probable than not, the burden is discharged, but if the probabilities are equal, it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
Kimaru J. (as he then was) in William Kabogo Gitau vs George Thuo & 2 others (2010) 1 KLR 526 stated that:
“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 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.”
Section 8 of the Traffic Act raises a presumption of law that is rebuttable in that the name of the person appearing in the records form of the registrar of motor vehicles and/or the logbook is the owner. Section 8 provides as follows:
The person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle.
In 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, and the person whose name the vehicle was registered under was presumed to be the owner thereof unless proved otherwise. See Securicor Kenya Ltd vs Kyumba Holdings Ltd. (2005) eKLR; Joel Muga Opinja vs East Africa Sea Food Ltd [2013] eKLR.
On the question of ownership of a motor vehicle, the Court of Appeal in Benard Muia Kilovoo v Kenya Fresh Produce Exporters [2020] eKLR summarized factors to be considered as follows: -
The presumption that the person registered as the owner of the motor vehicle in the logbook is the actual owner is rebuttable.
Where there exists other compelling evidence to prove otherwise, then the court can make a finding of ownership that is different from that contained in the logbook.
Each case must, however, be considered in its own peculiar facts.’’
The 1 st Respondent, suing as the Plaintiff before the trial Court, therefore had the legal burden of rebutting the presumption. Section 107(supra) is to the effect that he who alleges must prove. It is not in dispute that Transcorp Realty Investment Limited was the registered owner of the motor vehicle, vide the Registration Book for motor vehicle dated 2 nd March 2011, but later the company was changed to Treal Limited, the 3 rd Appellant herein, on 15 th September 2011.
At paragraph 7 of the Plaint, the 1 st Respondent pleaded that he purchased the suit motor vehicle from the 3 rd Appellant sometime late in the year 2016. Subsequently, the 1 st Appellant furnished him with original copies of the Certificate of Registration, duly filled transfer form by the 1 st Appellant and stamped by the official stamp of Treal Limited, Certificate of Change of Name, Certificate of incorporation, and KRA Pin Certificate to enable him to effect transfer of the suit motor vehicle. In support of his case, the 1 st Respondent produced the documents as exhibits. In a nutshell, the 1 st Respondent asserted that he purchased the motor vehicle from the 1 st and 3 rd Appellants.
The Appellants denied the 1 st Respondent’s assertions of ownership. According to the Appellants, they had contracted the 1 st Respondent to tow the motor vehicle to Nairobi in Kitengela, and so they did not sell the motor vehicle to the 1 st Respondent. Their case is that the 1 st Respondent attempted to convert the 3 rd Appellant’s motor vehicle based on possession. DW2 testified that the Plaintiff had been contracted to ferry the motor vehicle from Kisumu to Kitengela, though the agreement was oral. In the statement dated 7 th March 2024 adopted by DW2, the 1 st Appellant stated that the suit motor vehicle was being repaired at Namo Italiano garage at a cost of Kshs. 490,000.00 when he agreed with the 1 st Respondent to retrieve the suit motor vehicle from the garage to Kitengela, where the 3 rd Appellant was situated. The 1 st Appellant has stated that the 1 st Respondent collected the motor vehicle with his written authority when it was already repaired and in good condition. The Appellants'' case is that they never sold the motor vehicle to the 1 st Respondent, but only agreed with the 1 st Respondent to move the motor vehicle from the garage to the 3 rd Appellant''s place in Kitengela.
In the judgment, while finding the 1 st Respondent’s claim of ownership was proved on a balance of probabilities, the learned trial Magistrate observed that the 1 st Appellant gave the 1 st Respondent some documents which could only be for the purpose of transferring the motor vehicle to the 1 st Respondent and not transporting it to Kitengela. According to the learned trial Magistrate, it was alarming why the Appellants waited for four years to come and claim the motor vehicle from the 1 st Respondent without having reported the alleged theft to the police.
It is not in dispute that the motor vehicle had been involved in an accident and needed repairs. DW2 produced an invoice from Namo Italiano stating that the motor vehicle had been involved in an accident around 2012, whereby it stayed in a garage until 2017 when it was released to the 1 st Respondent. It was DW2''s testimony that the invoice had not been stamped as paid and that no receipt was available to show payments. DW2 stated that items were just listed therein and not indicated as having been replaced.
Gikonyo J. in E.P. Communications Ltd vs East Africa Courier Services Ltd [2019] eKLR stated that the purpose of an invoice is to be issued by a seller to request for payment for a purchase. It is therefore clear that invoices are mere documents in terms of proof of payment unless endorsed with a stamp as paid, as held by the Court of Appeal in Great Lakes Transport Company (u) Ltd v Kenya Revenue Authority (2009) eKLR, where it was stated as follows:
“We…take cognizance of the fact that an invoice is not a receipt for goods supplied unless it is specifically endorsed to the effect that the goods for which the invoice was prepared were paid for. In such a case, the endorsement should be visible on the invoice, and then the invoice plus the endorsement on it can be treated as a receipt for payment. What we mean is that in case the goods for which an invoice is issued have been paid for, one would normally expect endorsement such as the word “paid” on the invoice, and that would turn the status of the invoice into a receipt.’
It was admitted by DW2 that there were no pictures to show that some parts had been fixed, despite the 1 st Appellant stating in his witness statement that an amount of Kshs. 490,000.00 had been expended on repairs. The court notes that the 1 st Respondent exhibited several documents in support of his case, which on a balance of probabilities lead to a plausible conclusion that he acquired a beneficial interest in the motor vehicle. The transfer of ownership form bears the 1 st Respondent’s name as the new owner of the suit motor vehicle. The transferor is indicated to be the 3 rd Appellant as per the endorsed stamp. The letter dated 23 rd January 2017, under the 3 rd Appellant’s letterhead and written by the 1 st Appellant, instructs the recipient, Namo Italiano (K) Limited, the garage, to release the motor vehicle to the 1 st Respondent. In response, the garage wrote back to the 1 st Respondent vide the letter dated 28 th January 201, confirming that the motor vehicle was
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( Being an appeal from the Judgment/Decree and Orders of Hon. J.P Mkala-RM & Adjudicator dated 16 th August 2024 in Siaya CMCC No. E078 of 2023-Peter Ochieng Onyango vs Lucas Onyango Obaro, CPL James Maina Muchemi, Treal Limited & Inspector General of Police)
The Appeal arises from the Judgment/Decree and Orders of Hon. J.P Mkala -RM & Adjudicator dated 16 th August 2024 in Siaya CMCC No. E078 of 2023 wherein he entered judgement in favour of the 1 st Respondent against the 1 st , 2 nd and 3 rd Appellant inter alia; that they should return the suit motor vehicle to the 1 st Respondent within 30 days failing which they should pay the sum of Kshs 700, 000/ ( being the value of the suit vehicle) less Kshs 200, 000/ making a sum of Kshs 500, 000/; General damages of Kshs 50, 000/ be paid by the 2 nd Appellant personally to the 1 st Respondent; the case against the 2 nd Respondent was dismissed with no order as to costs; the 1 st , 2 nd and 3 rd Appellants to pay the costs of the suit plus interest at court rates.
Aggrieved, the 1 st , 2 nd and 3 rd Appellants filed their in their Memorandum of Appeal dated 16 th September 2024 wherein they raised the following grounds of appeal:
The learned trial Magistrate erred in law and misdirected himself in finding the 1 st Respondent (Plaintiff) had purchased motor vehicle registration number KAD 213M (the suit motor vehicle) on the basis of conjecture and speculation.
The learned trial Magistrate erred in law and misdirected himself when he framed questions to the 1 st and 2 nd Appellants'' witness, denied the witness an opportunity to explain using leading questions, effectively descending to the arena of dispute and tilting the trial in favour of the Plaintiff to the prejudice of the Appellants.
The learned trial Magistrate erred in law by relying on secondary evidence without a basis, despite the Appellants'' well-founded objections, which were overruled.
The learned trial Magistrate erred in law by relying on controverted and contradictory evidence by the Plaintiff, which raised serious questions on the credibility of his evidence
The learned trial Magistrate erred in law by disregarding the evidence led by the 2 nd Appellant and framing his questions and making conclusions based on conjecture
The learned trial Magistrate erred in law in failing to appreciate the fact that the onus of proof was on the 1 st Respondent and therefore shifted the burden by expecting the Appellants to prove their ownership beyond registration documents and the value of the motor vehicle as Defendants
The learned trial Magistrate erred in law and fact by finding that the 1 st Respondent had proved on a balance of probabilities that he is the owner of motor vehicle registration number KAD 213M without proof of any essentials of contract, proof of payment of any utility, including repair costs, insurance costs, and motor vehicle inspection costs
The learned trial Magistrate erred in law in failing to properly consider, evaluate, and analyse the evidence on record.
The Appellant prays that the judgment be set aside and substituted with a dismissal of the Plaintiff''s suit with costs. The Appellant seeks the costs of this appeal.
In the Plaint dated 1 st December 2023 , the 1 st Respondent prayed for judgment against the Defendants jointly and/or severally for: The Defendants are compelled to return the said motor vehicle in the same condition it was at the time they towed the said motor.
In the alternative, the Defendants are to pay the value of the said motor vehicle;
Loss of user at a rate of Kshs. 50,000.00 per month from 15/10/.2021
Interest on the said damages at such rate and for such a period as the court deems fit;
Costs of the suit;
Any other relief the court deems fit to grant.
The 1 st Respondent contended that at the material time, the 2 nd Appellant was the beneficial owner of motor vehicle KAD 213 M, having purchased the same from Treal Limited sometime in late 2016. According to the 1 st Respondent, the 1 st Appellant who was the director of Treal Limited duly furnished him with the original copies of the Certificate of Registration duly filed transfer form by the 1 st Appellant and stamped by official stamp of Treal Limited, certificate of change of name, certificate of incorporation and KRA Pin Certificate to enable the Plaintiff to effect transfer of the said motor vehicle. It is pleaded that at the time of purchase, the said motor vehicle was in dire need of repair having been involved in a road traffic accident and was parked at Namo Italiano (K) Limited Garage at Kisumu. He repaired the motor vehicle. According to the 1 st Respondent, on 15 th October 2021 at around noon, he was summoned by the 2 nd Appellant, a police officer attached to Ng’iya police Patrol Base, as a result of a complaint by the 1 st Appellant on allegations that he had stolen the motor vehicle. That the 2 nd Appellant demanded that the Plaintiff produce a certificate of Registration and a sale agreement pending investigation, lest he be put in custody. He produced the documents, but after a while, the 2 nd Appellant informed the 1 st Respondent that he had received Kshs. 200,000.00 from the 1 st Appellant to his M-Pesa line 0723 656 393. The 1 st Respondent was directed by the 2 nd Appellant to withdraw Kshs. 10,000.00. The 1 st Respondent pleaded that on the same day at around 9.00 am, the 1 st and 2 nd Appellants, in the presence of other unknown people, towed the motor vehicle from his compound, and when the 1 st Respondent objected, he was told by the 2 nd Appellant that it was being towed to the police station pending investigations. It was pleaded that he learnt that no complaint was made at Ngiya Police Patrol Base or any other police station but that the 1 st and 2 nd Appellants colluded and/or conspired to steal the 1 st Respondent’s motor vehicle KAD 213M from him and deprive him of ownership by the abuse of office by the 2 nd Appellant. He pleaded that he was deprived of ownership and the loss of the said motor vehicle.
The Appellants filed a joint Statement of Defence dated 7 th March 2021. The 1 st and 3 rd Appellants'' case is that they had contracted the 1 st Respondent to tow the motor vehicle to Nairobi in Kitengela, and that they did not sell the motor vehicle. It was pleaded that the 1 st Respondent had attempted to convert the 3 rd Appellant’s motor vehicle on the basis of possession, which had become unlawful when he refused to release the motor vehicle. Accordingly, the money demanded of Kshs. 200,000.00 by the 1 st Respondent was money expended in the process of moving the motor vehicle from Nam Italiano garage to his home, which the 1 st Appellant settled, though exorbitant. On his part, the 2 nd Appellant denied that he orchestrated the towing. He did not book the claim since the 1 st Appellant had not made an official report to the police, as the 1 st Appellant and 1 st Respondent had agreed to resolve the dispute outside court. The 2 nd Appellant herein denied that the Inspector General of Police committed any wrongdoing against the 1 st Respondent. They urged the learned trial Magistrate to dismiss the 1 st Respondent’s case with costs.
Through the Attorney General, the 2 nd Respondent filed a Statement of Defence dated 20 th March 2024 wherein it was pleaded that on 15 th October 2021 a complaint was made by the 1 st Appellant against the 1 st Respondent at Ng’iya Police Base through his agent concerning a motor vehicle but due lack of ownership documents, the 1 st Appellant and the 1 st Respondent were advised to report the matter to the Directorate of Criminal Investigations. Instead, the 1 st Respondent instituted a suit which is the subject of this appeal by the Appellants. The particulars of intimidation, threats, abuse of office and collusion with the 1 st Appellant to deprive the 1 st Respondent of the motor vehicle were denied.
This being the first appellate court, its duty is well spelt out namely, to re-evaluate the evidence tendered before the trial court and subject it to an independent analysis so as to
PW1 Josephat Kamau Principal Officer with Primedots Assessors stated that he undertook a valuation of the motor vehicle KAD 213M under the instructions of the 1 st Respondent, the owner of the vehicle. They gave a Pre-Theft valuation report dated 15/4/2024 of the vehicle at Kshs. 700,000.00. They charged Kshs. 5000 for preparing the report as professional fees and Kshs. 5,000 as court attendance fee. According to PW1, the vehicle having reached age of 29 years, it was at the plateau stage where the value is determined by demand and supply. They took two values of a well-maintained vehicle in the open market and made an average. On being cross-examined, PW1 told court that he signed the report though his name does not appear in the report. He stated that he did not inspect the motor vehicle. He stated that he was provided with a logbook. According to PW1, the 1 st Respondent was the beneficial owner. He stated that it was not indicated that there is a police officer who owns it.
Peter Ochieng Onyango (PW2) was the 1 st Respondent herein who adopted his witness statement dated 1/12/2023 as his evidence in chief. He produced all the documents as exhibits, save for the transfer of ownership which the trial Court allowed for its production vide a ruling. He stated that Cpl James Maina Muchemi asked him to send Kshs. 2,000 to facilitate him in looking after the truck. He stated that he had not authorized the release of the motor vehicle to Lucas whom he had not talked to for almost four years. On being cross-examined, he stated that he brought a copy of the logbook because the original documents were with Mr. Muchemi. He stated that the registration indicated that the car belonged to Transcorp Limited. He stated that it was Lucas Onyango who gave him the transfer after he filed and stamped it with the stamp of Treal Limited, though he did not sign. He stated that he had not transferred the motor vehicle to himself since he had not gotten the money to transfer it. He stated that he had repaired the motor vehicle since it had been involved in an accident. That he bought the motor vehicle at Kshs. 500,000.00 though a receipt was not given. He stated that he did not have a sale agreement between him and Lucas, though he bought the motor vehicle through installments. That Lucas gave him an acknowledgment of payment. He stated that Lucas prepared the sale agreement. He stated that Muchemi took his documents by force, but that he did not report. He stated that he received Kshs. 200,000.00, though he did not want it. That Muchemi forced him to send Kshs. 10,000.00. That he withdrew the money from M-Pesa. He told the court that he had never used the car since he had repaired it. On being cross-examined, PW2 told the court that he sued the 2 nd Respondent herein because of what the 2 nd Appellant did. He reported to IPOA. On re-examination, PW2 stated that Cpl Maina Muchemi handcuffed him until he gave money. That he did not report since he didn’t know the procedure and was not given an OB.
In the defence case, DW1, the 2 nd Appellant adopted his witness statement dated 27/3/24 as his evidence in chief. On being cross-examined, he stated that PW2 did not produce any document at the police station. He stated that he did not received any money from PW2, but that he received Kshs. 2,030.for pishori rice, which he used to sell within Siaya as his side hustle job, though he did not have any evidence to show that the money was for rice or that he operated a business of selling rice. He stated that he did not record the report as he received the complaint over the phone. He told the court that it was not minuted and it was not known to his superior. He denied having breached Clause 5 of the Police Standing Orders. He stated that there was no official complaint made at the station. On re-examination, he stated that he did not report the complaint since the complainant was not around and that he was to personally bring documents. That he did not report the information to his superior since there was no formal complaint and that the parties had already agreed.
Eddy Odhiambo Ouma (DW2) , testified that he is Teal Limited Director and that the company was the owner of the motor vehicle in issue. He stated that he was testifying on behalf of Lucas Onyango Obaro, who had been hospitalized at St. Paul’s Hospital, Kitengela. He adopted Lucas’s statement dated 7 th March 2024 as the 3 rd Defendant’s evidence in chief. He produced a copy of the logbook and invoice from Namo Italiano as exhibits. On being cross-examined, he stated that he knew the Plaintiff through talking but had not met him in person. He denied the Plaintiff had been employed or earned a salary from the company. He stated that the motor vehicle was involved in an accident around 2012 and was released to the Plaintiff in 2017. He stated that the motor vehicle had been in a garage for six years. He stated that the invoice was not stamped or as paid as there was no receipt showing payment. He stated that it itemized the list of items that Namo Italiano had replaced, but did not indicate the items replaced. He stated that there were other items that had not been fixed to make the vehicle roadworthy, e.g., the entire dashboard, which has not been fixed to date. He stated that he did not have any pictures to show that some parts had not been fixed. He stated that it did not show that the Plaintiff did any repairs to the vehicle. That it was his testimony that the Plaintiff had been contracted to ferry the motor vehicle from Kisumu to Kitengela, though the agreement was oral. He stated that the pictures were taken outside the police station. He stated that the complaint was made to Ng’iya police, though the transaction never reached the OB Section. He stated that the officer had their complaint. It was further his testimony that the Plaintiff and Mr.Obaro negotiated and that the Plaintiff demanded Kshs. 300,000.00 but negotiated further and settled at Kshs. 200,000.00. He stated that the demand letter was not served to them. In re-examination, he stated that the Plaintiff was performing a service. He stated that the Plaintiff resisted delivering the motor vehicle which had never been fixed.
Upon the close of the defence case, and before the delivery of the judgment, the learned trial Magistrate directed parties to provide the documents of when Mr. Eddy Odhiambo Ouma became a Director within 14 days. Further, it was ordered that the Registrar of Companies supply certified copies of the registration documents and other documents contained in the file for Treal Limited, CPR/2010/32984.
Based on the issues for determination, framed in his judgment, the learned trial Magistrate found Eddy Odhiambo Ouma (DW2) who was the Managing Partner at OG Law LLP and Director of the 3 rd Appellant was not conflicted since he had never represented the 1 st and 3 rd Defendants (1 st and 3 rd Appellants herein) but Ms. Agina Advocate had always appeared for the 1 st , 2 nd and 3 rd Defendants, thus DW2 had the capacity to testify. As to who owned motor vehicle KAD 213M, the learned trial Magistrate found the 1 st Respondent had proved on a balance of probabilities that he had purchased the motor vehicle from the 1 st and 3 rd Defendants. According to the learned trial Magistrate, the 1 st Appellant gave the 1 st Respondent some documents which can only be for purposes of transferring the motor vehicle to the 1 st Respondent, and it was alarming why they waited for four years to come and claim the motor vehicle from the 1 st Respondent without having reported the alleged theft to the police. As to whether the 2 nd Appellant breached his duty, it was held that the 4th Defendant (2 nd Respondent) could not be held vicariously liable for the breaches committed by the 2 nd Appellant outside his official mandate. According to the learned trial Magistrate, the 2 nd Appellant knew what he was supposed to do, but went ahead to follow his own procedures. On the claim for loss of user, the learned trial Magistrate observed that the 1 st Respondent had admitted on evidence that the motor vehicle, having been involved in an accident, he was in the process of repairing it and it was not working, thus the claim was untenable and was dismissed. On the value of the motor vehicle, the learned trial Magistrate found the assessment value of Kshs. 700,000.00 for the motor vehicle was fair since the Defendants failed to provide an alternative valuation report despite being in possession of the motor vehicle
In the end, the learned trial Magistrate found the 1 st , 2 nd, and 3 rd Appellants jointly and severally liable in the following terms: The 1 st and 3 rd Appellants shall, within 30 days from the date of this judgment, return the motor vehicle registration number KAD 213M to the Plaintiff; failure to which they shall pay the sum of Kshs. 700,000.00, which is the value of the motor vehicle, less Kshs. 200,000.00, making it Kshs. 500,000.00;
The claim for loss of user be and is hereby dismissed.
The 2 nd Defendant is hereby found to have breached his duty, thereby occasioning loss to the Plaintiff
The 2 nd Defendant shall pay as general damages of Kshs. 50,000.00 personally to the Plaintiff.
The case against the 4 th Defendant (2 nd Respondent) be and is hereby dismissed with no orders as to costs.
The 1 st , 2 nd, and 3 rd Defendants shall pay the costs to the Plaintiff.
There shall be interest at the court’s rates from the date of the judgment until payment in full
Stay of execution for 30 days.
I have considered the appeal in light of the evidence on record and written submissions filed on behalf of the parties herein.
This being a first appeal, the role of this Court is to re-evaluate and subject the evidence to a fresh analysis to reach an independent conclusion as to whether or not to uphold the decision of the trial Court. The court also takes note of the fact that it did not have the benefit of seeing or hearing the witnesses testify and therefore has to make an allowance for the same. ( Selle vs. Associated Motor Boat Co. [1968] EA 123).
Odunga J. (as he then was) in China Wu Yi Company Limited vs Ronald Manthi David [2021] KEHC 1626 (KLR) stated that this Court is under a duty to delve at some length into factual details and revisit the facts as presented in the trial Court, analyze the same, evaluate it and arrive at its independent conclusions, but always remembering, and giving allowance for it, that the trial Court had the advantage of hearing the parties.
In Abok James Odera t/a A.J Odera & Associates vs John Patrick Machira t/a Machira & Co. Advocates [2013] e KLR , the duty of the first appellate court was also held thus;
“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess, and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way”
In Ephantus Mwangi and Another vs Duncan Mwangi Civil Appeal No. 77 of 1982 [1982-1988] 1KAR 278, the Court of Appeal held that:
“A member of an appellate court is not bound to accept the learned Judge’s findings of fact if it appears either that (a) he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or (b) if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”
The dispute between the parties herein revolves around ownership of motor vehicle registration number KAD 213M. Primarily, the grounds of appeal enumerated in the Memorandum of Appeal are seeking a determination on the question of motor vehicle ownership. The issues that are for determination are:
Whether the 1 st Respondent proved on a balance of probabilities that he is the owner of motor vehicle registration number KAD 213M;
Whether the trial Court erred in relying on secondary evidence by the 1 st Respondent without a basis.
What reliefs was the 1 st Respondent entitled to?
The legal burden of proof was on the 1 st Respondent to prove his claim on a balance of probabilities. It was therefore incumbent upon the 1 st Respondent to prove his assertions as pleaded in the Plaint.
Section 107(1) of the Evidence Act , Cap 80 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.
However, the burden may shift to the Defendant to disprove the alleged claim. This is the evidential burden of proof, which is well captured under Sections 109 and 112 of the Evidence Act. See Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334 .
The two concepts are well illustrated by the Court of Appeal in the case of Mbuthia Macharia v Annah Mutua & Another [2017] eKLR , that:
“The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes an evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced.” See Supreme Court in Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR,
The standard of proof is well captured in the case of Palace Investment Ltd v. Geoffrey Kariuki Mwenda & Another (2015) eKLR , where the Court held that:
Denning J. in Miller v 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 is more probable than not, the burden is discharged, but if the probabilities are equal, it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
Kimaru J. (as he then was) in William Kabogo Gitau vs George Thuo & 2 others (2010) 1 KLR 526 stated that:
“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 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.”
Section 8 of the Traffic Act raises a presumption of law that is rebuttable in that the name of the person appearing in the records form of the registrar of motor vehicles and/or the logbook is the owner. Section 8 provides as follows:
The person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle.
In 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, and the person whose name the vehicle was registered under was presumed to be the owner thereof unless proved otherwise. See Securicor Kenya Ltd vs Kyumba Holdings Ltd. (2005) eKLR; Joel Muga Opinja vs East Africa Sea Food Ltd [2013] eKLR.
On the question of ownership of a motor vehicle, the Court of Appeal in Benard Muia Kilovoo v Kenya Fresh Produce Exporters [2020] eKLR summarized factors to be considered as follows: -
The presumption that the person registered as the owner of the motor vehicle in the logbook is the actual owner is rebuttable.
Where there exists other compelling evidence to prove otherwise, then the court can make a finding of ownership that is different from that contained in the logbook.
Each case must, however, be considered in its own peculiar facts.’’
The 1 st Respondent, suing as the Plaintiff before the trial Court, therefore had the legal burden of rebutting the presumption. Section 107(supra) is to the effect that he who alleges must prove. It is not in dispute that Transcorp Realty Investment Limited was the registered owner of the motor vehicle, vide the Registration Book for motor vehicle dated 2 nd March 2011, but later the company was changed to Treal Limited, the 3 rd Appellant herein, on 15 th September 2011.
At paragraph 7 of the Plaint, the 1 st Respondent pleaded that he purchased the suit motor vehicle from the 3 rd Appellant sometime late in the year 2016. Subsequently, the 1 st Appellant furnished him with original copies of the Certificate of Registration, duly filled transfer form by the 1 st Appellant and stamped by the official stamp of Treal Limited, Certificate of Change of Name, Certificate of incorporation, and KRA Pin Certificate to enable him to effect transfer of the suit motor vehicle. In support of his case, the 1 st Respondent produced the documents as exhibits. In a nutshell, the 1 st Respondent asserted that he purchased the motor vehicle from the 1 st and 3 rd Appellants.
The Appellants denied the 1 st Respondent’s assertions of ownership. According to the Appellants, they had contracted the 1 st Respondent to tow the motor vehicle to Nairobi in Kitengela, and so they did not sell the motor vehicle to the 1 st Respondent. Their case is that the 1 st Respondent attempted to convert the 3 rd Appellant’s motor vehicle based on possession. DW2 testified that the Plaintiff had been contracted to ferry the motor vehicle from Kisumu to Kitengela, though the agreement was oral. In the statement dated 7 th March 2024 adopted by DW2, the 1 st Appellant stated that the suit motor vehicle was being repaired at Namo Italiano garage at a cost of Kshs. 490,000.00 when he agreed with the 1 st Respondent to retrieve the suit motor vehicle from the garage to Kitengela, where the 3 rd Appellant was situated. The 1 st Appellant has stated that the 1 st Respondent collected the motor vehicle with his written authority when it was already repaired and in good condition. The Appellants'' case is that they never sold the motor vehicle to the 1 st Respondent, but only agreed with the 1 st Respondent to move the motor vehicle from the garage to the 3 rd Appellant''s place in Kitengela.
In the judgment, while finding the 1 st Respondent’s claim of ownership was proved on a balance of probabilities, the learned trial Magistrate observed that the 1 st Appellant gave the 1 st Respondent some documents which could only be for the purpose of transferring the motor vehicle to the 1 st Respondent and not transporting it to Kitengela. According to the learned trial Magistrate, it was alarming why the Appellants waited for four years to come and claim the motor vehicle from the 1 st Respondent without having reported the alleged theft to the police.
It is not in dispute that the motor vehicle had been involved in an accident and needed repairs. DW2 produced an invoice from Namo Italiano stating that the motor vehicle had been involved in an accident around 2012, whereby it stayed in a garage until 2017 when it was released to the 1 st Respondent. It was DW2''s testimony that the invoice had not been stamped as paid and that no receipt was available to show payments. DW2 stated that items were just listed therein and not indicated as having been replaced.
Gikonyo J. in E.P. Communications Ltd vs East Africa Courier Services Ltd [2019] eKLR stated that the purpose of an invoice is to be issued by a seller to request for payment for a purchase. It is therefore clear that invoices are mere documents in terms of proof of payment unless endorsed with a stamp as paid, as held by the Court of Appeal in Great Lakes Transport Company (u) Ltd v Kenya Revenue Authority (2009) eKLR, where it was stated as follows:
“We…take cognizance of the fact that an invoice is not a receipt for goods supplied unless it is specifically endorsed to the effect that the goods for which the invoice was prepared were paid for. In such a case, the endorsement should be visible on the invoice, and then the invoice plus the endorsement on it can be treated as a receipt for payment. What we mean is that in case the goods for which an invoice is issued have been paid for, one would normally expect endorsement such as the word “paid” on the invoice, and that would turn the status of the invoice into a receipt.’
It was admitted by DW2 that there were no pictures to show that some parts had been fixed, despite the 1 st Appellant stating in his witness statement that an amount of Kshs. 490,000.00 had been expended on repairs. The court notes that the 1 st Respondent exhibited several documents in support of his case, which on a balance of probabilities lead to a plausible conclusion that he acquired a beneficial interest in the motor vehicle. The transfer of ownership form bears the 1 st Respondent’s name as the new owner of the suit motor vehicle. The transferor is indicated to be the 3 rd Appellant as per the endorsed stamp. The letter dated 23 rd January 2017, under the 3 rd Appellant’s letterhead and written by the 1 st Appellant, instructs the recipient, Namo Italiano (K) Limited, the garage, to release the motor vehicle to the 1 st Respondent. In response, the garage wrote back to the 1 st Respondent vide the letter dated 28 th January 201, confirming that the motor vehicle was
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