BACKGROUND
1. This is a first appeal from the judgment of the Chief Magistrate's Court at Bungoma (Hon. H. Getenga, Resident Magistrate) delivered on 8th October 2024 in Bungoma Civil Suit No. E227 of 2021. In that judgment, the trial Court dismissed the suit as against the 1st Defendant, Auto Industries Limited, but entered judgment for the Plaintiff (the Respondent in this appeal) against the 2nd Defendant, Paul Sifuna Sikuku, and the Third Party, Nayan Limited (the Appellant herein), jointly and severally, in the sum of Kshs.844,050 by way of general and special damages, together with interest and costs.
2. Aggrieved by the finding of liability against it, the Appellant filed a Memorandum of Appeal dated 31st October 2024, advancing four grounds of appeal, together with a Record of Appeal and a Supplementary Record of Appeal. The Appellant and the Respondent thereafter filed written submissions, the matter having been canvassed by way of written submissions by direction of this Court.
3. This judgment is rendered on the basis of the Record of Appeal, the Supplementary Record of Appeal (comprising the full proceedings before the trial Court and the trial judgment), the Memorandum of Appeal, and the rival written submissions filed on behalf of the Appellant and the Respondent respectively.
FACTS
The Respondent's Claim
4. By a Plaint dated 20th August 2021, the Respondent, a minor suing through her next friend and mother, Phyllis Machuma Wamalwa, sued Auto Industries Limited as 1st Defendant and Paul Sifuna Sikuku as 2nd Defendant. It was pleaded that on or about 15th July 2019, at around 4.00 p.m., the Respondent was travelling as a pillion passenger on motorcycle registration number KMEH 383P along the Nasianda–Mateka road when motorcycle registration number KMEE 113H, negligently ridden and/or managed by the Defendants, their agent or driver, lost control and veered off the road, knocking down the Respondent and the rider of KMEH 383P, causing the Respondent to sustain serious bodily injuries.
5. The 1st Defendant was sued as the party shown, upon a search of the register of motor vehicles, to be the registered owner of KMEE 113H. The 2nd Defendant was sued as its beneficial and/or possessory owner and insurer. The Respondent pleaded particulars of negligence, particulars of injury, and claimed general and special damages of Kshs.44,050, together with costs and interest.
The 1st Defendant's Defence and the Third Party Notice
6. The 1st Defendant entered appearance and filed a Statement of Defence dated 22nd October 2021 denying the occurrence of the accident as pleaded and denying liability. It averred that its interest in KMEE 113H was merely that of a supplier of motorcycles to dealers; that at no material time did it have possession, custody or control of the motorcycle; and that it did not exercise control over the person managing the motorcycle on the material day.
7. On 13th January 2022, and with leave of the trial Court, the 1st Defendant issued a Third Party Notice against the Appellant, Nayan Limited, contending that the Appellant was liable to indemnify the 1st Defendant on the ground that KMEE 113H had been sold to, and delivered to, the Appellant, being among a consignment of motorcycles listed under Proforma Invoice Number 24824 and Delivery Note Number 2432.
8. In response, the Appellant did not file a defence to the Third Party Notice but instead filed an Affidavit in Opposition to Third Party Notice sworn on 31st January 2022 by its director, Diten Dinu Lalji Chavda. The Appellant averred that it dealt in the procurement and sale of motorcycles; that KMEE 113H had indeed been supplied to it by the 1st Defendant under Delivery Note Number 2432; that it had, in turn, sold the motorcycle to one Moses Wanjala Wamalwa on 19th July 2017, who took immediate possession of it; that it was a term of the sale agreement between the Appellant and the 1st Defendant that the purchaser (the Appellant) bore the obligation to effect transfer upon purchase; and that the Appellant accordingly bore no liability for the accident, not knowing the 2nd Defendant and having no connection with the circumstances of the accident.
9. The 2nd Defendant, through counsel, participated in the proceedings, cross-examined the Respondent's witnesses, but ultimately closed his case without calling any evidence.
Evidence at the Trial
10. The Respondent called four witnesses. PW1, Phylis Machuma Wamalwa, the Respondent's mother and next friend, adopted her witness statement and produced documentary exhibits, testifying that the Respondent had sustained a fracture with malunion resulting in a shortened right lower limb, defeating her ambition of joining the disciplined forces. In cross-examination she confirmed that she was not present at the scene of the accident and conceded that the copy of records (search) produced named the 1st Defendant, and not the 2nd Defendant, as the registered owner of KMEE 113H.
11. PW2, Fred Wafula, a boda boda operator riding behind the motorcycle on which the Respondent was a passenger, testified to having witnessed the collision between KMEE 113H and KMEH 383P but stated that he did not know, and could not identify, the rider of KMEE 113H.
12. PW3, Dr. Mulianga Ekesa, a consultant surgeon, testified as to the nature and extent of the Respondent's injuries, opining that she had sustained soft tissue injuries, a fractured and mal-united right thigh bone resulting in shortening of the right lower limb by approximately 1.5cm, and psychological trauma, and that corrective surgery would cost in the region of Kshs.100,000 to Kshs.150,000 at a public or faith-based facility, subject to inflation.
13. PW4, No. 81576 P.C. Jackline Were of the Bungoma Police Station traffic department, produced the police abstract, the charge sheet and the Court fine receipt, and testified that the 2nd Defendant had been charged with, and had paid a fine in respect of, the offence of failing to keep records of the actual rider of KMEE 113H, the rider having evaded arrest at the scene; that neither motorcycle involved in the accident was insured; and that the scene had been attended by Corporal Khaemba, who has since retired, with no sketch plan of the scene on record.
14. This Court notes, for completeness, that PW4's recorded testimony, read literally at one point, appears to describe the Respondent as having been the pillion passenger on KMEE 113H, whereas the Plaint, the evidence of PW1 and PW2, and the balance of the record consistently and without contradiction place the Respondent on KMEH 383P, with KMEE 113H being the motorcycle that struck it. This Court treats the apparent discrepancy as an immaterial slip in the recording of that single passage of testimony, rather than as a finding of fact, it being inconsistent with, and outweighed by, the unchallenged and consistent evidence of every other witness and document on record identifying KMEE 113H as the offending motorcycle and KMEH 383P as the one on which the Respondent was a passenger. The discrepancy does not affect, and is not relied upon in, the disposition of this appeal.
15. The 1st Defendant's sole witness, DW1 Salman Cocker, its head of finance, testified that the 1st Defendant is engaged in importing, assembling and distributing motorcycles, which it sells to dealers and not to individual members of the public; that KMEE 113H had initially been registered in the 1st Defendant's name but had been sold, together with other units, to the Appellant; that although the 1st Defendant had not effected transfer of registration within the fourteen days prescribed by law, it had, pursuant to the terms of the sale agreement between it and the Appellant, delivered the relevant transfer documents to the Appellant, the sale agreement placing the obligation to perfect transfer upon the purchaser; and that thereafter the 1st Defendant had no possession, custody or control of the motorcycle, and that the rider was neither its agent nor its servant.
16. The Appellant's sole witness, its director Diten Dinu Lalji Chavda, adopted his affidavit as his evidence-in-chief, confirming that the Appellant had purchased KMEE 113H, among a batch of motorcycles, from the 1st Defendant, and that it had sold the motorcycle on 19th July 2017 to one Moses Wanjala Wamalwa, who took immediate possession; and that the Appellant did not consider itself liable, laying blame on Moses Wanjala Wamalwa. In cross-examination, however, the witness conceded: that the Appellant had no document evidencing that the motorcycle had actually been transferred from the 1st Defendant to itself; that it had no receipt or other proof of payment to the 1st Defendant for the motorcycle; that the motorcycle remained registered in the name of the 1st Defendant as at the date of his testimony, some seven years after the alleged onward sale; and that the Appellant had never enjoined Moses Wanjala Wamalwa as a third party notwithstanding attributing the accident to him. On re-examination, the witness explained that the Appellant had not transferred the motorcycle to Moses Wanjala Wamalwa “because Auto Industries had not transferred it to Nayan Ltd,” the position being that the 1st Defendant was first required to transfer ownership to the Appellant, who would in turn transfer it to the ultimate buyer, “and that had not happened.”
The Judgment of the Trial Court
17. In its judgment, the trial Court applied Section 8 of the Traffic Act, Cap 403, which creates a rebuttable presumption that the person in whose name a motor vehicle is registered is the owner thereof. Applying that provision, the trial Court found that although the copy of records indicated the 1st Defendant as the registered owner of KMEE 113H, the circumstances of the case, corroborated by the documentary exhibits and by the Appellant's own evidence of having received the motorcycle under Delivery Note Number 2432, established that the motorcycle had in fact been sold to the Appellant; the 1st Defendant had accordingly rebutted the statutory presumption and was absolved of liability.
18. The trial Court further found that the 2nd Defendant, having been charged with a traffic offence in relation to KMEE 113H arising from the same accident, could not escape liability, and was found to be the beneficial owner of the motorcycle at the material time. As between the Appellant and Moses Wanjala Wamalwa, the trial Court found that, since Moses Wanjala Wamalwa was not a party to the suit and the Appellant had adduced no more than its own uncorroborated assertion that it had sold the motorcycle to him, it remained incumbent on the Appellant, having itself been enjoined by the 1st Defendant, to enjoin Moses Wanjala Wamalwa if it wished the Court to apportion liability between them; not having done so, the Appellant could not escape liability, and was found on the evidence to remain the actual owner of the motorcycle as at the date of the accident.
19. The trial Court accordingly entered judgment for the Respondent against the 2nd Defendant and the Appellant, jointly and severally, and awarded general damages of Kshs.600,000, future medical expenses of Kshs.200,000, and special damages of Kshs.44,050 (of which Kshs.41,050 had been strictly proved), together with interest and costs, further directing that the 1st Defendant's costs of the suit be borne by the Appellant.
ISSUES FOR DETERMINATION
20. The Appellant's Memorandum of Appeal dated 31st October 2024 sets out four grounds, namely that the learned trial magistrate erred in fact and in law:
(i) in misinterpreting Section 8 of the Traffic Act, Cap 403, with regard to the ownership of motor vehicles;
(ii) in disregarding the evidence of the Appellant relating to the ownership of the accident motor cycle;
(iii) in apportioning liability to the Appellant in the absence of any evidence to that effect; and
(iv) in offering contradicting findings which had the effect of leading to an erroneous conclusion on liability.
21. Arising from these grounds and the rival submissions, this Court considers that the following issues fall for determination:
(a) What is the proper approach of this Court, sitting as a first appellate Court, to the evidence on record?
(b) Whether the learned trial magistrate correctly interpreted and applied Section 8 of the Traffic Act in determining the question of ownership of motorcycle registration number KMEE 113H as between the 1st Defendant, the 2nd Defendant and the Appellant;
(c) Whether the learned trial magistrate disregarded, or failed properly to evaluate, the evidence tendered by the Appellant on the question of ownership;
(d) Whether there was evidence on record capable of sustaining the apportionment of liability against the Appellant;
(e) Whether the findings of the trial Court are vitiated by internal contradiction; and
(f) What orders should issue, including as to costs.
ANALYSIS
(a) The Duty of a First Appellate Court
22. This being a first appeal, this Court is under a duty to re-evaluate the evidence adduced before the trial Court and to draw its own conclusions of fact and law, while bearing in mind, and giving due allowance for, the fact that it neither saw nor heard the witnesses testify and is accordingly not as well placed as the trial Court to assess their credibility (see Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123). This Court will not lightly interfere with findings of fact made by the trial Court unless they are shown to be based on no evidence, or on a demonstrable misapprehension of the evidence, or the trial Court is shown to have acted on wrong principles in arriving at its findings. It is with this standard in mind that the four grounds of appeal, and the issues arising therefrom, are considered below.
(b) and (c) Section 8 of the Traffic Act – Interpretation and Application; Evidence of Ownership Tendered by the Appellant
23. Grounds one and two of the appeal are interlinked and are conveniently considered together. Section 8 of the Traffic Act, Cap 403, provides that the person in whose name a motor vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle. It is well settled, on the authorities placed before the trial Court and repeated before this Court – Nancy Ayemba Ngaira v Abdi Ali, Msa HCCA No. 1007 of 2008 [2010] eKLR; Samuel Mukunya Kamunge v John Mwangi Kamuru, Nyeri HC Civil Appeal No. 34 of 2002; and Francis Nzioka Ngao v Silas Thiani Nkunga, Nairobi Court of Appeal No. 92 of 1998 – that this presumption is rebuttable, that registration is not conclusive proof of ownership, and that a party other than the registered owner may be shown, on a balance of probabilities, to be the actual, beneficial or possessory owner of a vehicle for the purposes of liability.
24. It is common ground, and correctly conceded by the Appellant in its submissions, that the trial magistrate properly applied this principle in absolving the 1st Defendant of liability. The 1st Defendant's evidence that it had sold KMEE 113H to the Appellant was corroborated by a body of largely unchallenged documentary evidence – the sale agreement, Proforma Invoice Number 24824, Delivery Note Number 2432, a gate pass, a list of logbooks, and a bank statement – and, critically, by the admission of the Appellant's own witness that the Appellant had indeed received KMEE 113H as part of a consignment of motorcycles from the 1st Defendant. On that evidence, the trial magistrate was plainly entitled to find that the 1st Defendant had discharged the burden of proving that it was not, in any material sense, the owner of the motorcycle at the time of the accident.
25. The Appellant's contention is that, by parity of reasoning, the same conclusion ought to have followed in its favour, given that it too produced a sale agreement, dated 19th July 2017, evidencing an onward sale of the motorcycle to one Moses Wanjala Wamalwa. This Court has given this submission careful consideration but does not find it persuasive, for the following reasons.
26. First, whereas the sale from the 1st Defendant to the Appellant was corroborated by multiple, mutually consistent documents going to price, delivery and receipt of a specific consignment that included KMEE 113H, the Appellant's claimed onward sale to Moses Wanjala Wamalwa rested on a bare sale agreement, unsupported by any evidence of delivery of the motorcycle or its registration book to him, of payment received from him, of his taking out insurance or otherwise using the motorcycle, or of any other conduct consistent with his having assumed ownership.
27. Second, and more fundamentally, the Appellant's own witness undermined the very transaction he sought to rely upon. On re-examination, he explained that the motorcycle had not in fact been transferred to Moses Wanjala Wamalwa because the 1st Defendant had not itself transferred registration to the Appellant, the intended sequence being that the 1st Defendant would first transfer ownership to the Appellant, who would in turn transfer it to the ultimate buyer, “and that had not happened.” This evidence, given by the Appellant's own witness, is destructive of the claim that an effectual, completed transfer to Moses Wanjala Wamalwa had taken place by the time of the accident in July 2019, two years after the date borne by the sale agreement relied upon.
28. Third, it was not disputed that, as at the date of the Appellant's testimony in 2024, the motorcycle remained registered in the name of the 1st Defendant. The Appellant, on its own case, had assumed the contractual (and, on the authorities cited, the statutory) obligation to perfect transfer of the motorcycle within a prescribed period, and had manifestly failed to do so, whether in favour of itself or in favour of Moses Wanjala Wamalwa.
29. In these circumstances, this Court does not find that the learned trial magistrate disregarded the Appellant's evidence; on the contrary, the record shows that she considered it, including the sale agreement to Moses Wanjala Wamalwa, but was entitled, for the cogent reasons articulated in her judgment and borne out on this Court's own re-evaluation of the record, to find that evidence insufficient to displace the ownership consequences flowing from the Appellant's own, better-corroborated receipt of the motorcycle. The trial magistrate applied one and the same standard under Section 8 of the Traffic Act to both the 1st Defendant and the Appellant; she simply, and in this Court's view correctly, arrived at different conclusions because the quality and completeness of the evidence adduced by each party differed materially. Grounds one and two of the appeal accordingly fail.
(d) Whether There Was Evidence to Sustain the Apportionment of Liability
30. The Appellant's third ground, that liability was apportioned to it “in the absence of any evidence,” is not borne out by the record. As set out above, there was evidence – the delivery note and invoice evidencing receipt of the motorcycle, the admissions of the Appellant's own witness as to the absence of proof of onward transfer, and the undisputed fact that registration remained in the 1st Defendant's name – capable of sustaining the trial Court's finding. What the Appellant in truth complains of is not an absence of evidence but an adverse evaluation of the evidence that was before the Court, which is a different matter.
31. The Appellant's submissions place considerable emphasis on the proposition that a defendant seeking to rely on third party proceedings must apply for directions on the trial of the third party question, and that third party proceedings resolve only the issue of indemnity or contribution as between a defendant and a third party, relying on ASC Metal Belgium v Blue Nile (East Africa) Limited, eKLR; Oceanfreight (EA) Ltd v Technomatic Ltd & Another (2010) eKLR; and Car & General (Trading) Limited v Divinah Kv’amboka Abuga (2023) KEHC27197 (KLR). These are unremarkable statements of civil procedure with which this Court has no quarrel. They do not, however, assist the Appellant, because the trial Court's observation concerning the Appellant's failure to enjoin Moses Wanjala Wamalwa was not deployed as a freestanding procedural basis for liability; it was one of several evidential considerations weighed by the trial Court in determining, as a matter of fact, whether the Appellant had proved that it had parted with ownership of the motorcycle by the date of the accident. A litigant who asserts that it sold a chattel to a named, identifiable individual, yet neither calls that individual nor otherwise proves the reality of the transaction through documentary or circumstantial evidence, is at an obvious forensic disadvantage on that issue; that the individual in question was never called as a witness, or joined as a party, whether by the Appellant or otherwise, only reinforces the incompleteness of the proof tendered. Read in that light, the trial Court committed no error of law in taking this circumstance into account, and this Court does not understand the trial Court's judgment, fairly read, to hold that mere failure to join a further party is of itself, and without more, dispositive of liability.
32. The Appellant further submits that no negligence was proved against it because there was no evidence of agency or vicarious liability between it and the rider of KMEE 113H, relying on John Nderi Wamungi v Rubesh Okumu Otiangala & 2 Others, Kisumu CA No. 24 of 2015, and Kiema Mutuku v Kenya Cargo Hauling Services Limited (1991) 2 KAL 258. This submission proceeds on a misapprehension of the basis on which the trial Court found the Appellant liable. The finding was not that the Appellant was vicariously liable as an employer or principal of the rider, but that the Appellant, on the evidence, remained the actual owner of the offending motorcycle at the material time. It is well established, including in the very authorities relied upon by both parties on the question of ownership (Nancy Ayemba Ngaira v Abdi Ali; Samuel Mukunya Kamunge v John Mwangi Kamuru), that liability for the negligent operation of a motor vehicle may attach to its owner – whether registered, actual, beneficial or possessory – independently of proof of a formal employment or agency relationship with the person actually driving or riding it at the material time. The authorities cited by the Appellant on vicarious liability, being concerned with true master-and-servant or principal-and-agent relationships, do not address, and are accordingly of no assistance on, the distinct question of owner's liability upon which the trial Court's finding rests.
33. Finally, to the extent that the Respondent's submissions before the trial Court, and before this Court, suggest that the Appellant's failure to file a formal defence (as opposed to an affidavit in opposition to the third party notice) and its failure to file a witness statement in the conventional sense contributed to the finding against it, this Court agrees with the Appellant, and with the authority of Simeon Sagana Kanai v Standard Limited (2009) KEHC 3450 (KLR), that the mere absence of a defence or witness statement cannot, of itself, found a finding of liability; liability must rest on evidence. This principle, however, does not assist the Appellant on the facts of this case, because, as demonstrated above, the trial Court's finding did not rest on the absence of a formal defence but on a considered evaluation of the evidence that the Appellant did in fact tender, through its witness and the documents produced by him, which evidence this Court, on its own independent re-evaluation, finds was properly assessed by the trial Court. Ground three of the appeal accordingly fails.
(e) Whether the Trial Court's Findings Were Contradictory
34. The fourth ground of appeal, that the trial magistrate made contradictory findings leading to an erroneous conclusion on liability, was not particularised with any specificity in the Appellant's submissions beyond its inclusion in the Memorandum of Appeal. Having independently re-evaluated the judgment of the trial Court as a whole, this Court does not find it to be internally contradictory. The trial Court's findings trace, in a logical and sequential manner, the chain of dealings in the motorcycle: from the 1st Defendant, whose sale to the Appellant was proved and accepted; to the Appellant, whose claimed onward sale to Moses Wanjala Wamalwa was not proved; and, consequently, to a finding that ownership, in the relevant sense, remained with the Appellant (jointly with the 2nd Defendant as beneficial owner in possession) as at the date of the accident. These findings are consistent with, and flow naturally from, one another; they disclose no contradiction. Ground four of the appeal accordingly fails.
(f) Damages
35. It is to be noted that the Appellant's grounds of appeal, and its submissions, are directed exclusively at the finding on liability and do not challenge the quantum of damages awarded by the trial Court. This Court has, in any event, had regard to the injuries sustained by the Respondent as testified to by PW3 and as recorded in the medical report, and to the authorities considered by the trial Court in assessing general damages and future medical expenses. This Court finds no basis, none having been urged, to interfere with the quantum awarded by the trial Court.
36. For the reasons set out above, this Court finds that none of the four grounds of appeal has been made out. The learned trial magistrate correctly identified and applied the law under Section 8 of the Traffic Act, Cap 403, to the question of ownership of motorcycle registration number KMEE 113H. She considered and fairly evaluated the evidence tendered by the Appellant on that question. Her finding of joint and several liability as between the 2nd Defendant and the Appellant was supported by evidence properly on record; and, on this Court's own re-evaluation, her findings, read as a whole, disclose no internal contradiction.
37. Accordingly, this Court makes the following orders:
(a) The appeal is hereby dismissed in its entirety.
(b) The judgment and decree of the Chief Magistrate's Court at Bungoma in Civil Suit No. E227 of 2021, delivered on 8th October 2024, are hereby upheld in their entirety.
(c) The Appellant shall bear the Respondent's costs of this appeal.
38. It is so ordered.
In the presence of:
Counsel for the Appellant: Mr. Mango
Counsel for the Respondent: N/A
Court Assistant: Irene Chelang'at
1. This is a first appeal from the judgment of the Chief Magistrate's Court at Bungoma (Hon. H. Getenga, Resident Magistrate) delivered on 8th October 2024 in Bungoma Civil Suit No. E227 of 2021. In that judgment, the trial Court dismissed the suit as against the 1st Defendant, Auto Industries Limited, but entered judgment for the Plaintiff (the Respondent in this appeal) against the 2nd Defendant, Paul Sifuna Sikuku, and the Third Party, Nayan Limited (the Appellant herein), jointly and severally, in the sum of Kshs.844,050 by way of general and special damages, together with interest and costs.
2. Aggrieved by the finding of liability against it, the Appellant filed a Memorandum of Appeal dated 31st October 2024, advancing four grounds of appeal, together with a Record of Appeal and a Supplementary Record of Appeal. The Appellant and the Respondent thereafter filed written submissions, the matter having been canvassed by way of written submissions by direction of this Court.
3. This judgment is rendered on the basis of the Record of Appeal, the Supplementary Record of Appeal (comprising the full proceedings before the trial Court and the trial judgment), the Memorandum of Appeal, and the rival written submissions filed on behalf of the Appellant and the Respondent respectively.
FACTS
The Respondent's Claim
4. By a Plaint dated 20th August 2021, the Respondent, a minor suing through her next friend and mother, Phyllis Machuma Wamalwa, sued Auto Industries Limited as 1st Defendant and Paul Sifuna Sikuku as 2nd Defendant. It was pleaded that on or about 15th July 2019, at around 4.00 p.m., the Respondent was travelling as a pillion passenger on motorcycle registration number KMEH 383P along the Nasianda–Mateka road when motorcycle registration number KMEE 113H, negligently ridden and/or managed by the Defendants, their agent or driver, lost control and veered off the road, knocking down the Respondent and the rider of KMEH 383P, causing the Respondent to sustain serious bodily injuries.
5. The 1st Defendant was sued as the party shown, upon a search of the register of motor vehicles, to be the registered owner of KMEE 113H. The 2nd Defendant was sued as its beneficial and/or possessory owner and insurer. The Respondent pleaded particulars of negligence, particulars of injury, and claimed general and special damages of Kshs.44,050, together with costs and interest.
The 1st Defendant's Defence and the Third Party Notice
6. The 1st Defendant entered appearance and filed a Statement of Defence dated 22nd October 2021 denying the occurrence of the accident as pleaded and denying liability. It averred that its interest in KMEE 113H was merely that of a supplier of motorcycles to dealers; that at no material time did it have possession, custody or control of the motorcycle; and that it did not exercise control over the person managing the motorcycle on the material day.
7. On 13th January 2022, and with leave of the trial Court, the 1st Defendant issued a Third Party Notice against the Appellant, Nayan Limited, contending that the Appellant was liable to indemnify the 1st Defendant on the ground that KMEE 113H had been sold to, and delivered to, the Appellant, being among a consignment of motorcycles listed under Proforma Invoice Number 24824 and Delivery Note Number 2432.
8. In response, the Appellant did not file a defence to the Third Party Notice but instead filed an Affidavit in Opposition to Third Party Notice sworn on 31st January 2022 by its director, Diten Dinu Lalji Chavda. The Appellant averred that it dealt in the procurement and sale of motorcycles; that KMEE 113H had indeed been supplied to it by the 1st Defendant under Delivery Note Number 2432; that it had, in turn, sold the motorcycle to one Moses Wanjala Wamalwa on 19th July 2017, who took immediate possession of it; that it was a term of the sale agreement between the Appellant and the 1st Defendant that the purchaser (the Appellant) bore the obligation to effect transfer upon purchase; and that the Appellant accordingly bore no liability for the accident, not knowing the 2nd Defendant and having no connection with the circumstances of the accident.
9. The 2nd Defendant, through counsel, participated in the proceedings, cross-examined the Respondent's witnesses, but ultimately closed his case without calling any evidence.
Evidence at the Trial
10. The Respondent called four witnesses. PW1, Phylis Machuma Wamalwa, the Respondent's mother and next friend, adopted her witness statement and produced documentary exhibits, testifying that the Respondent had sustained a fracture with malunion resulting in a shortened right lower limb, defeating her ambition of joining the disciplined forces. In cross-examination she confirmed that she was not present at the scene of the accident and conceded that the copy of records (search) produced named the 1st Defendant, and not the 2nd Defendant, as the registered owner of KMEE 113H.
11. PW2, Fred Wafula, a boda boda operator riding behind the motorcycle on which the Respondent was a passenger, testified to having witnessed the collision between KMEE 113H and KMEH 383P but stated that he did not know, and could not identify, the rider of KMEE 113H.
12. PW3, Dr. Mulianga Ekesa, a consultant surgeon, testified as to the nature and extent of the Respondent's injuries, opining that she had sustained soft tissue injuries, a fractured and mal-united right thigh bone resulting in shortening of the right lower limb by approximately 1.5cm, and psychological trauma, and that corrective surgery would cost in the region of Kshs.100,000 to Kshs.150,000 at a public or faith-based facility, subject to inflation.
13. PW4, No. 81576 P.C. Jackline Were of the Bungoma Police Station traffic department, produced the police abstract, the charge sheet and the Court fine receipt, and testified that the 2nd Defendant had been charged with, and had paid a fine in respect of, the offence of failing to keep records of the actual rider of KMEE 113H, the rider having evaded arrest at the scene; that neither motorcycle involved in the accident was insured; and that the scene had been attended by Corporal Khaemba, who has since retired, with no sketch plan of the scene on record.
14. This Court notes, for completeness, that PW4's recorded testimony, read literally at one point, appears to describe the Respondent as having been the pillion passenger on KMEE 113H, whereas the Plaint, the evidence of PW1 and PW2, and the balance of the record consistently and without contradiction place the Respondent on KMEH 383P, with KMEE 113H being the motorcycle that struck it. This Court treats the apparent discrepancy as an immaterial slip in the recording of that single passage of testimony, rather than as a finding of fact, it being inconsistent with, and outweighed by, the unchallenged and consistent evidence of every other witness and document on record identifying KMEE 113H as the offending motorcycle and KMEH 383P as the one on which the Respondent was a passenger. The discrepancy does not affect, and is not relied upon in, the disposition of this appeal.
15. The 1st Defendant's sole witness, DW1 Salman Cocker, its head of finance, testified that the 1st Defendant is engaged in importing, assembling and distributing motorcycles, which it sells to dealers and not to individual members of the public; that KMEE 113H had initially been registered in the 1st Defendant's name but had been sold, together with other units, to the Appellant; that although the 1st Defendant had not effected transfer of registration within the fourteen days prescribed by law, it had, pursuant to the terms of the sale agreement between it and the Appellant, delivered the relevant transfer documents to the Appellant, the sale agreement placing the obligation to perfect transfer upon the purchaser; and that thereafter the 1st Defendant had no possession, custody or control of the motorcycle, and that the rider was neither its agent nor its servant.
16. The Appellant's sole witness, its director Diten Dinu Lalji Chavda, adopted his affidavit as his evidence-in-chief, confirming that the Appellant had purchased KMEE 113H, among a batch of motorcycles, from the 1st Defendant, and that it had sold the motorcycle on 19th July 2017 to one Moses Wanjala Wamalwa, who took immediate possession; and that the Appellant did not consider itself liable, laying blame on Moses Wanjala Wamalwa. In cross-examination, however, the witness conceded: that the Appellant had no document evidencing that the motorcycle had actually been transferred from the 1st Defendant to itself; that it had no receipt or other proof of payment to the 1st Defendant for the motorcycle; that the motorcycle remained registered in the name of the 1st Defendant as at the date of his testimony, some seven years after the alleged onward sale; and that the Appellant had never enjoined Moses Wanjala Wamalwa as a third party notwithstanding attributing the accident to him. On re-examination, the witness explained that the Appellant had not transferred the motorcycle to Moses Wanjala Wamalwa “because Auto Industries had not transferred it to Nayan Ltd,” the position being that the 1st Defendant was first required to transfer ownership to the Appellant, who would in turn transfer it to the ultimate buyer, “and that had not happened.”
The Judgment of the Trial Court
17. In its judgment, the trial Court applied Section 8 of the Traffic Act, Cap 403, which creates a rebuttable presumption that the person in whose name a motor vehicle is registered is the owner thereof. Applying that provision, the trial Court found that although the copy of records indicated the 1st Defendant as the registered owner of KMEE 113H, the circumstances of the case, corroborated by the documentary exhibits and by the Appellant's own evidence of having received the motorcycle under Delivery Note Number 2432, established that the motorcycle had in fact been sold to the Appellant; the 1st Defendant had accordingly rebutted the statutory presumption and was absolved of liability.
18. The trial Court further found that the 2nd Defendant, having been charged with a traffic offence in relation to KMEE 113H arising from the same accident, could not escape liability, and was found to be the beneficial owner of the motorcycle at the material time. As between the Appellant and Moses Wanjala Wamalwa, the trial Court found that, since Moses Wanjala Wamalwa was not a party to the suit and the Appellant had adduced no more than its own uncorroborated assertion that it had sold the motorcycle to him, it remained incumbent on the Appellant, having itself been enjoined by the 1st Defendant, to enjoin Moses Wanjala Wamalwa if it wished the Court to apportion liability between them; not having done so, the Appellant could not escape liability, and was found on the evidence to remain the actual owner of the motorcycle as at the date of the accident.
19. The trial Court accordingly entered judgment for the Respondent against the 2nd Defendant and the Appellant, jointly and severally, and awarded general damages of Kshs.600,000, future medical expenses of Kshs.200,000, and special damages of Kshs.44,050 (of which Kshs.41,050 had been strictly proved), together with interest and costs, further directing that the 1st Defendant's costs of the suit be borne by the Appellant.
ISSUES FOR DETERMINATION
20. The Appellant's Memorandum of Appeal dated 31st October 2024 sets out four grounds, namely that the learned trial magistrate erred in fact and in law:
(i) in misinterpreting Section 8 of the Traffic Act, Cap 403, with regard to the ownership of motor vehicles;
(ii) in disregarding the evidence of the Appellant relating to the ownership of the accident motor cycle;
(iii) in apportioning liability to the Appellant in the absence of any evidence to that effect; and
(iv) in offering contradicting findings which had the effect of leading to an erroneous conclusion on liability.
21. Arising from these grounds and the rival submissions, this Court considers that the following issues fall for determination:
(a) What is the proper approach of this Court, sitting as a first appellate Court, to the evidence on record?
(b) Whether the learned trial magistrate correctly interpreted and applied Section 8 of the Traffic Act in determining the question of ownership of motorcycle registration number KMEE 113H as between the 1st Defendant, the 2nd Defendant and the Appellant;
(c) Whether the learned trial magistrate disregarded, or failed properly to evaluate, the evidence tendered by the Appellant on the question of ownership;
(d) Whether there was evidence on record capable of sustaining the apportionment of liability against the Appellant;
(e) Whether the findings of the trial Court are vitiated by internal contradiction; and
(f) What orders should issue, including as to costs.
ANALYSIS
(a) The Duty of a First Appellate Court
22. This being a first appeal, this Court is under a duty to re-evaluate the evidence adduced before the trial Court and to draw its own conclusions of fact and law, while bearing in mind, and giving due allowance for, the fact that it neither saw nor heard the witnesses testify and is accordingly not as well placed as the trial Court to assess their credibility (see Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123). This Court will not lightly interfere with findings of fact made by the trial Court unless they are shown to be based on no evidence, or on a demonstrable misapprehension of the evidence, or the trial Court is shown to have acted on wrong principles in arriving at its findings. It is with this standard in mind that the four grounds of appeal, and the issues arising therefrom, are considered below.
(b) and (c) Section 8 of the Traffic Act – Interpretation and Application; Evidence of Ownership Tendered by the Appellant
23. Grounds one and two of the appeal are interlinked and are conveniently considered together. Section 8 of the Traffic Act, Cap 403, provides that the person in whose name a motor vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle. It is well settled, on the authorities placed before the trial Court and repeated before this Court – Nancy Ayemba Ngaira v Abdi Ali, Msa HCCA No. 1007 of 2008 [2010] eKLR; Samuel Mukunya Kamunge v John Mwangi Kamuru, Nyeri HC Civil Appeal No. 34 of 2002; and Francis Nzioka Ngao v Silas Thiani Nkunga, Nairobi Court of Appeal No. 92 of 1998 – that this presumption is rebuttable, that registration is not conclusive proof of ownership, and that a party other than the registered owner may be shown, on a balance of probabilities, to be the actual, beneficial or possessory owner of a vehicle for the purposes of liability.
24. It is common ground, and correctly conceded by the Appellant in its submissions, that the trial magistrate properly applied this principle in absolving the 1st Defendant of liability. The 1st Defendant's evidence that it had sold KMEE 113H to the Appellant was corroborated by a body of largely unchallenged documentary evidence – the sale agreement, Proforma Invoice Number 24824, Delivery Note Number 2432, a gate pass, a list of logbooks, and a bank statement – and, critically, by the admission of the Appellant's own witness that the Appellant had indeed received KMEE 113H as part of a consignment of motorcycles from the 1st Defendant. On that evidence, the trial magistrate was plainly entitled to find that the 1st Defendant had discharged the burden of proving that it was not, in any material sense, the owner of the motorcycle at the time of the accident.
25. The Appellant's contention is that, by parity of reasoning, the same conclusion ought to have followed in its favour, given that it too produced a sale agreement, dated 19th July 2017, evidencing an onward sale of the motorcycle to one Moses Wanjala Wamalwa. This Court has given this submission careful consideration but does not find it persuasive, for the following reasons.
26. First, whereas the sale from the 1st Defendant to the Appellant was corroborated by multiple, mutually consistent documents going to price, delivery and receipt of a specific consignment that included KMEE 113H, the Appellant's claimed onward sale to Moses Wanjala Wamalwa rested on a bare sale agreement, unsupported by any evidence of delivery of the motorcycle or its registration book to him, of payment received from him, of his taking out insurance or otherwise using the motorcycle, or of any other conduct consistent with his having assumed ownership.
27. Second, and more fundamentally, the Appellant's own witness undermined the very transaction he sought to rely upon. On re-examination, he explained that the motorcycle had not in fact been transferred to Moses Wanjala Wamalwa because the 1st Defendant had not itself transferred registration to the Appellant, the intended sequence being that the 1st Defendant would first transfer ownership to the Appellant, who would in turn transfer it to the ultimate buyer, “and that had not happened.” This evidence, given by the Appellant's own witness, is destructive of the claim that an effectual, completed transfer to Moses Wanjala Wamalwa had taken place by the time of the accident in July 2019, two years after the date borne by the sale agreement relied upon.
28. Third, it was not disputed that, as at the date of the Appellant's testimony in 2024, the motorcycle remained registered in the name of the 1st Defendant. The Appellant, on its own case, had assumed the contractual (and, on the authorities cited, the statutory) obligation to perfect transfer of the motorcycle within a prescribed period, and had manifestly failed to do so, whether in favour of itself or in favour of Moses Wanjala Wamalwa.
29. In these circumstances, this Court does not find that the learned trial magistrate disregarded the Appellant's evidence; on the contrary, the record shows that she considered it, including the sale agreement to Moses Wanjala Wamalwa, but was entitled, for the cogent reasons articulated in her judgment and borne out on this Court's own re-evaluation of the record, to find that evidence insufficient to displace the ownership consequences flowing from the Appellant's own, better-corroborated receipt of the motorcycle. The trial magistrate applied one and the same standard under Section 8 of the Traffic Act to both the 1st Defendant and the Appellant; she simply, and in this Court's view correctly, arrived at different conclusions because the quality and completeness of the evidence adduced by each party differed materially. Grounds one and two of the appeal accordingly fail.
(d) Whether There Was Evidence to Sustain the Apportionment of Liability
30. The Appellant's third ground, that liability was apportioned to it “in the absence of any evidence,” is not borne out by the record. As set out above, there was evidence – the delivery note and invoice evidencing receipt of the motorcycle, the admissions of the Appellant's own witness as to the absence of proof of onward transfer, and the undisputed fact that registration remained in the 1st Defendant's name – capable of sustaining the trial Court's finding. What the Appellant in truth complains of is not an absence of evidence but an adverse evaluation of the evidence that was before the Court, which is a different matter.
31. The Appellant's submissions place considerable emphasis on the proposition that a defendant seeking to rely on third party proceedings must apply for directions on the trial of the third party question, and that third party proceedings resolve only the issue of indemnity or contribution as between a defendant and a third party, relying on ASC Metal Belgium v Blue Nile (East Africa) Limited, eKLR; Oceanfreight (EA) Ltd v Technomatic Ltd & Another (2010) eKLR; and Car & General (Trading) Limited v Divinah Kv’amboka Abuga (2023) KEHC27197 (KLR). These are unremarkable statements of civil procedure with which this Court has no quarrel. They do not, however, assist the Appellant, because the trial Court's observation concerning the Appellant's failure to enjoin Moses Wanjala Wamalwa was not deployed as a freestanding procedural basis for liability; it was one of several evidential considerations weighed by the trial Court in determining, as a matter of fact, whether the Appellant had proved that it had parted with ownership of the motorcycle by the date of the accident. A litigant who asserts that it sold a chattel to a named, identifiable individual, yet neither calls that individual nor otherwise proves the reality of the transaction through documentary or circumstantial evidence, is at an obvious forensic disadvantage on that issue; that the individual in question was never called as a witness, or joined as a party, whether by the Appellant or otherwise, only reinforces the incompleteness of the proof tendered. Read in that light, the trial Court committed no error of law in taking this circumstance into account, and this Court does not understand the trial Court's judgment, fairly read, to hold that mere failure to join a further party is of itself, and without more, dispositive of liability.
32. The Appellant further submits that no negligence was proved against it because there was no evidence of agency or vicarious liability between it and the rider of KMEE 113H, relying on John Nderi Wamungi v Rubesh Okumu Otiangala & 2 Others, Kisumu CA No. 24 of 2015, and Kiema Mutuku v Kenya Cargo Hauling Services Limited (1991) 2 KAL 258. This submission proceeds on a misapprehension of the basis on which the trial Court found the Appellant liable. The finding was not that the Appellant was vicariously liable as an employer or principal of the rider, but that the Appellant, on the evidence, remained the actual owner of the offending motorcycle at the material time. It is well established, including in the very authorities relied upon by both parties on the question of ownership (Nancy Ayemba Ngaira v Abdi Ali; Samuel Mukunya Kamunge v John Mwangi Kamuru), that liability for the negligent operation of a motor vehicle may attach to its owner – whether registered, actual, beneficial or possessory – independently of proof of a formal employment or agency relationship with the person actually driving or riding it at the material time. The authorities cited by the Appellant on vicarious liability, being concerned with true master-and-servant or principal-and-agent relationships, do not address, and are accordingly of no assistance on, the distinct question of owner's liability upon which the trial Court's finding rests.
33. Finally, to the extent that the Respondent's submissions before the trial Court, and before this Court, suggest that the Appellant's failure to file a formal defence (as opposed to an affidavit in opposition to the third party notice) and its failure to file a witness statement in the conventional sense contributed to the finding against it, this Court agrees with the Appellant, and with the authority of Simeon Sagana Kanai v Standard Limited (2009) KEHC 3450 (KLR), that the mere absence of a defence or witness statement cannot, of itself, found a finding of liability; liability must rest on evidence. This principle, however, does not assist the Appellant on the facts of this case, because, as demonstrated above, the trial Court's finding did not rest on the absence of a formal defence but on a considered evaluation of the evidence that the Appellant did in fact tender, through its witness and the documents produced by him, which evidence this Court, on its own independent re-evaluation, finds was properly assessed by the trial Court. Ground three of the appeal accordingly fails.
(e) Whether the Trial Court's Findings Were Contradictory
34. The fourth ground of appeal, that the trial magistrate made contradictory findings leading to an erroneous conclusion on liability, was not particularised with any specificity in the Appellant's submissions beyond its inclusion in the Memorandum of Appeal. Having independently re-evaluated the judgment of the trial Court as a whole, this Court does not find it to be internally contradictory. The trial Court's findings trace, in a logical and sequential manner, the chain of dealings in the motorcycle: from the 1st Defendant, whose sale to the Appellant was proved and accepted; to the Appellant, whose claimed onward sale to Moses Wanjala Wamalwa was not proved; and, consequently, to a finding that ownership, in the relevant sense, remained with the Appellant (jointly with the 2nd Defendant as beneficial owner in possession) as at the date of the accident. These findings are consistent with, and flow naturally from, one another; they disclose no contradiction. Ground four of the appeal accordingly fails.
(f) Damages
35. It is to be noted that the Appellant's grounds of appeal, and its submissions, are directed exclusively at the finding on liability and do not challenge the quantum of damages awarded by the trial Court. This Court has, in any event, had regard to the injuries sustained by the Respondent as testified to by PW3 and as recorded in the medical report, and to the authorities considered by the trial Court in assessing general damages and future medical expenses. This Court finds no basis, none having been urged, to interfere with the quantum awarded by the trial Court.
36. For the reasons set out above, this Court finds that none of the four grounds of appeal has been made out. The learned trial magistrate correctly identified and applied the law under Section 8 of the Traffic Act, Cap 403, to the question of ownership of motorcycle registration number KMEE 113H. She considered and fairly evaluated the evidence tendered by the Appellant on that question. Her finding of joint and several liability as between the 2nd Defendant and the Appellant was supported by evidence properly on record; and, on this Court's own re-evaluation, her findings, read as a whole, disclose no internal contradiction.
37. Accordingly, this Court makes the following orders:
(a) The appeal is hereby dismissed in its entirety.
(b) The judgment and decree of the Chief Magistrate's Court at Bungoma in Civil Suit No. E227 of 2021, delivered on 8th October 2024, are hereby upheld in their entirety.
(c) The Appellant shall bear the Respondent's costs of this appeal.
38. It is so ordered.
In the presence of:
Counsel for the Appellant: Mr. Mango
Counsel for the Respondent: N/A
Court Assistant: Irene Chelang'at