1. This is an Appeal from the Judgment and Decree of Hon. S.N. Mutava, Resident Magistrate, dated 29.52024 arising from Rongo PMCC No. E027 of 2023.
2. The Appeal is against liability and the award of damages. However, the Appellant filed a 11-paragraph Memorandum of Appeal. It is certainly not edifying for advocates to present 11 argumentative grounds of appeal, and end up arguing only two issues. This is anathema the provisions of Order 42 Rule 1 of the Civil Procedure Rules, which posits as doth: -
“Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading. (2) The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.
3. The Court of Appeal had this to say about compliance with Rule 86 of the Court of Appeal Rules (which is pari materia with Order 42 Rule 1 of the Civil Procedure Rules) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR: -
“We are yet again confronted with an appeal founded on a memorandum of appeal that is drawn in total disregard of rule 86 of the Court of Appeal Rules. That rule demands that a memorandum of appeal must set forth concisely, without argument or narrative, the grounds upon which a judgment is impugned. What we have before us are some 18 grounds of appeal that lack focus and are repetitively tedious. It is certainly not edifying for counsel to present two dozen grounds of appeal, and end up arguing only two or three issues, on the myth that he has condensed the grounds of appeal. This Court has repeatedly stated that counsel must take time to draw the memoranda of appeal in strict compliance with the rules of the Court. (See Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v. IEBC & 2 Others [2018] eKLR. In the latter case, this Court lamented:
“We must reiterate that counsel must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric…A surfeit of prolixious grounds of appeal do not in anyway enhance the chances of success of an appeal. If they achieve anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs.” The 18 grounds of appeal presented by the appellant, Robinson Kiplagat Tuwei against the judgment of the Environment and Land Court at Eldoret (Odeny, J.) dated 19th September 2018 raise only two issues…”
4. Repetitive grounds of appeal tend to cloud the key issue in dispute for determination by the Court. The same issue was addressed succinctly court of appeal in the case of Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR as follows:
“Our first observation is that the memorandum of appeal in this matter sets out repetitive grounds of appeal. The singular issue in this appeal is whether Section 62 of the Kenya Ports Authority Act ousts the jurisdiction of the High Court. We abhor repetitiveness of grounds of appeal which tend to cloud the key issue in dispute for determination by the Court. In William Koross V. Hezekiah Kiptoo Kimue & 4 others, Civil Appeal No. 223 of 2013 , this Court stated:
“The memorandum of appeal contains some thirty-two grounds of appeal, too many by any measure and serving only to repeat and obscure. We have said it before and will repeat that memoranda of appeal need to be more carefully and efficiently crafted by counsel. In this regard, precise, concise and brief is wiser and better.”
5. The grounds are thus ancillary, repetitive, prolixious and a waste of judicial time. This court will have to deal with whether the magistrate erred in finding the Appellants 100% liable and in the award of the damages. The only two issues are whether the court misapprehended evidence in its finding on liability and whether the award of damages was inordinately high or unsupported.
6. The Plaint dated 2.3.2023 claimed damages arising from an accident that occurred on 28.12.2022. The accident involved the Plaintiff while a passenger motor vehicle registration no. KDG 735M along Rongo-Migori Road at Texas Petrol Station when the said motor vehicle was driven negligently and it hit unknown tractor from behind as a result of which the Plaintiff sustained person injuries.
7. The Plaintiff set forth particulars of negligence for the accident motor vehicle. The Plaintiff pleaded Ksh. 316,550/= as Special Damages and also pleaded General Damages. The injuries were pleaded as follows:
a. Compound fracture of the left tibia/fibula.
b. Bruises on the elbows
8. The Respondent entered appearance and filed defence denying the particulars of negligence and injuries pleaded in the Plaint.
9. The Trial Court heard the parties and proceeded to render Judgement allowing general damages at Ksh. 1,000,000/=, future medical expenses of Ksh. 300,000/= and special damages of Ksh. 16,550/=. Aggrieved by the finding of the Trial Court, the Appellant lodged a Memorandum of Appeal hence this Appeal.
Evidence
10. During the hearing, PW1 was Dennis Owino Omollo. He adopted his statement dated 2.3.2023 and produced the documents in his list of documents filed in court. on cross examination, he testified that he was seated behind the driver. The accident occurred on 28.12.2022.
11. PW2 was No. 89421, CPL Chacha Joseph a police officer attached to the Awendo Police Station Traffic Base. He relied on the police abstract for the accident that allegedly occurred on 28.12.2022 at 2000hrs. It was his case that motor vehicle tried to overtake an unknown tractor. The driver noticed an oncoming motor vehicle and avoided colliding with it and so rammed into the rear of the tractor causing injuries to the passengers on board. On cross examination, he testified that he got the details of the accident on the occurrence book. It was not produced. The 2 nd Respondent was the driver.
12. PW3 was Dr. Aggrey Idakiza Akidiva. He produced his medical report. He examined the 1 st Respondent on 23.2.2023. he sustained a compound fracture of the left tibia and bruise on the elbows. He suffered 45 % disability. On cross examination, he examined the x ray image. He charged Ksh. 16,000/=.
13. On his part, the Appellant testified as DW1, Enock Kambaya. He was credit manager of the Appellant. He testified that had they sold the accident motor vehicle to the 2 nd Respondent vide sale agreement dated 28.12.2021.
Submissions .
14. The appellant filed submissions dated 10.12.2025 submitting that they had sold the vehicle one year earlier. Attention was drawn on clauses 8 and 11 of the agreements. They submitted that the second respondent should be solely liable.
15. It was their position that the registration was merely to secure a financial interest. They relied on the case of NCBA Bank Kenya PLC (Formerly National Industrial Credit Bank (K) PLC) v Shikanga & 2 others (Miscellaneous Application E074 & E075 of 2022(Consolidated)) [2023] KEHC 584 (KLR). They also relied on the case of Consolidated Bank of Kenya Limited v Mwangi & another (Civil Appeal E056 of 2021) [2022] KEHC 3104 (KLR), where DAS Majanja held as follows:
12. Having established beyond peradventure that the Appellant’s interest in the Motor Vehicle is to secure its financial interest, the next question is whether the Appellant is liable as contended by the Respondent. The learned trial magistrate did not address this issue the decision despite extensive submissions on the matter by the Appellant.
13. Ownership of a motor vehicle does not, of itself, establish liability for an accident. The plaintiff must prove that the owner is vicariously liable for the acts of the driver of the motor vehicle by showing that the driver is an employee or agent (see Jane Wairimu Turanta v Githae John Vickery and Equity Bank
Limited & Munene Don ML HCCC No. 483 of 2012 [2012] eKLR). As whether the owner who has a financial interest in a motor vehicle has control over the driver, which is at the heart of this appeal, our courts have held that a financier’s only interest in the security is to secure the repayment from the owner and it is not in control of the motor vehicle for that reason. In Ali Abdi Dere v Hash Hauliers Limited & Another MKS HCCC No. 16 of 2014 [2018] eKLR the court held that the position of a financier was merely to protect its interest in the motor vehicle it had nanced and could not be held vicariously liable for the actions of its driver while in Justus Kavisi Kilonzo v Coast Broadway Company Limited MSA HCCC No. 169 of 2007 [2008] eKLR the court was of the view that a nancier who had been
registered as a co-owner of a motor vehicle did not mean that it was a necessary party to proceedings.
The same position was taken by the Court of Appeal in Mohammed Hassan Musa and Another v Peter Mailanyi and Another NYR CA Civil Appeal No. 243 of 1998 [2000] eKLR stated as follows:
There is one other aspect of this appeal that we feel we must comment on. The plaintiff is an Advocate of the High Court of Kenya but in his attempt to realise the decree he resorted to what in effect amounted to jungle law. The third defendant, Diamond Trust (K) Ltd, which had nothing to do with the accident but had merely only financed the purchase of the motor vehicle which caused the accident was wrongly sued and attached.
16. It was further submitted that section 8 of the Traffic Act is prima facie ownership and not conclusive proof. The appellant rebutted the presumption by the abstract produced by the first appellant and the sale agreement. Reliance was placed on the case of Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] KECA 616 (KLR) , where the court of appeal [Karanja, Okwengu & G. B. M. Kariuki, JJ. A] held as follows:
Section 8 of the Traffic Offences Act provides that
“The person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle.”
This section has been interpreted to mean that the registration of the motor-vehicle is not conclusive proof of ownership. In the case of Osapil v. Kaddy [2000] 1 EALA 187 the Court of Appeal of Uganda held that a registration card or logbook was only prima-facie evidence of title to a motor vehicle. The person in whose name the vehicle was registered was presumed to be the owner thereof unless proved otherwise.
This Court adopted the interpretation above in the case of Securicor Kenya Ltd v. Kyumba Holdings Civil Appeal No. 73 of 2002 (Tunoi, O’Kubasu’ Deverell JJ.A) and held that;
“Our holding finds support in the decision in OSAPIL VS. KADDY [2000] 1 EALA 187 in which it was held by the Court of Appeal of Uganda that a registration card or logbook was only prima facie evidence of title to a motor vehicle and the person whose name the vehicle was registered was presumed to be the owner thereof unless proved otherwise. The appellant had, indeed, proved otherwise.”
Also recently, this Court in the case of Joel Muga Opinja v. East Africa Sea Food Ltd [2013] eKLR restated this position as follows:
“We agree that the best way to prove ownership would be to produce to the Court a document from Registrar of motor vehicles showing who the registered owner is but when the abstract is not challenged and is produced in Court without any objection, the contents cannot later be denied”
17. It was their submissions that the abstract corroborates the appellant’s evidence. On quantum they submitted that a sum of Ksh 500,000/= will suffice while future medical expenses ought to be dismissed.
18. The first respondent filed submissions dated 16.01.2026, stating that there are two issues, that is liability for motor vehicle registration number KDG 735M and damages of Ksh 1,000,000/= as general damages and Ksh. 300,000/= as future medical expenses. The submitted that the appellant relied on section 8 of the evidence act and did not do more. Further that possession does not amount to ownership. Reliance was placed on the cases of Benard Muia Kilovoo v Kenya Fresh Produce Exporters [2020] KEHC 5255 (KLR) , where the court, L.W. Gitari held as follows:
41. The Court of Appeal in these binding decisions is clearly stating:
(i) That the presumption that the person registered as owner of the motor vehicle in the logbook is the actual owner is rebuttable.
(ii) Where there exists other compelling evidence to proof otherwise then the court can make a finding of ownership that is different from that contained in the logbook.
(iii) Each case must however be considered in its own peculiar facts.
42. In this case the appellant did not produce a search from the Registrar of Motor-vehicle as proof of ownership. He relied on a Police abstract which was not challenged by the respondent and the respondent cannot deny the contents in the police abstract See the case of ; Joel Muga Opinja -vs- East Africa Sea food Limited ( 2013) eKLR ( supra).
19. On being found 100% liable, they relied on the case of Kenya Power & Lighting Company Ltd v JWK (Suing as father and next-friend of JKW) & another (Civil Appeal E012 of 2021) [2023] KEHC 1642 (KLR), where Mugambi L, J, held as follows:
In apportionment of liability, I am guided by the case of Khambi and Another vs. Mahithi and Another [1968] EA 70, where it was held that:
“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.”
20. They submitted that the appellant did not tender evidence on liability. Reliance was placed on the case of John Wainaina Kagwe V Hussein Dairy Limited [2010] KEHC 1764 (KLR) .
21. They submitted that a passenger does not have control over an accident. they relied on the case of Boniface Waiti & Another Vs Michael Kariuki Kamau (2007) eKLR.
22. They also addressed the question of quantum, that the same was proper. I have not seen the second Respondent’s submissions.
Analysis
23. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a subordinate court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.
24. This Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong. In the case of Mbogo and Another vs. Shah [1968] EA 93 the court stated:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
25. The duty of the first appellate court was set out in the case of Selle and another Vs Associated Motor Board Company and Others [1968] EA 123 , where the court in their usual gusto, held as follows; -
“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-subordinate and the Court of Appeal is not bound to follow the subordinate Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
26. The Court is to bear in in mind that it had neither seen nor heard the witnesses. It is the subordinate court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them.
27. This court’s the jurisdiction to review the evidence should be exercised with caution. In the cases of Peters vs Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows: -
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
28. Bearing in mind that the court does not have the advantage of seeing and hearing the witnesses as did the lower court, yet this court must reconsider the evidence, evaluate it itself and draw its own conclusions.
29. The court is asked to establish whether the lower court erred in finding, on a balance of probabilities that the 1 st Respondent proved his case on liability at 100% against the Appellant. The legal burden of proof lies upon the party who invokes the aid of the law and asserts an issue based thereon. In Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334 , the Court of Appeal held that:
“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
30. It follows that the initial burden of proof lies on the Plaintiffs, but the same may shift to the Defendant, depending on the circumstances of the case. In Evans Nyakwana –vs- Cleophas Bwana Ongaro [2015] eKLR it was held that:
“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”
31. This is not a criminal trial. It is a civil trial in which the court must find for one party or the other on the balance of probabilities. The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 as follows:
“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 opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”
32. This was further enunciated in the case of Palace Investments Limited v Geoffrey Kariuki Mwenda & Dollar Auctions [2015] KECA 616 (KLR) , where the Court of Appeal [J Karanja, GG Okwengu, CM Kariuki, JJA] stated as follows:
The burden of proof is placed upon the appellant and is to be discharged on a balance of probabilities. Denning J. in Miller –vs- 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 more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
33. The balance of probabilities is also about what is likely to have happened than the other. In Lord Nicholls of Birkenhead in Re H and Others (Minors) [1996] AC 563, 586 held that;
“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the even was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriated in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…..”
34. Furthermore, the standard of proof in civil cases must carry a reasonable degree of probability, but not so high as is required in a criminal case for such standard is based on a preponderance of probabilities. In Palace I nvestment Ltd –vs- Geoffrey Kariuki Mwenda & Another [2015] eKLR , the Judges of Appeal held that:
“Denning J, in Miller –vs- 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 a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.
This, burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will loose because the requisite standard will not have been attained.”
35. The 1 st Respondent herein was a passenger in the accident motor vehicle. It was his case that the motor vehicle was driven at a high speed and it caused an accident in which it hit a tractor on the rear and he suffered injuries. In my revaluation of the evidence and testimonies in the lower court, the 1 st Respondent was not to blame in any way. The second respondent was to blame for the accident. However, the question is whether the appellant was vicariously liable for the accident herein. Their main and only defence was that they sold the suit motor vehicle. The police record produce by the first respondent indicated that the owner was Sunda Nyamwanya Onguti. He is also indicted as the insured.
36. The appellant issued a third-party notice to the second respondent. In the case there was amble evidence that the appellant was not the owner of the driver. The appellant was also not vicariously liable for the accident. Can a registered owner be held liable for a vehicle for which he is not in control?
37. The registered owner was able to show that she sold the vehicle to the second Respondent way back on 28.12.2021. The actual owner or the subsequent buyer was joined to the suit. Service on the third party was effected. The position on the aspects of section 8 of the Traffic Act was addressed in the case of Securicor Kenya Limited v. Kyumba Holdings Limited [2005] 1KLR 748 , the Court of Appeal found as follows:
“It was apparent, therefore, that though the appellant remained the registered owner of the motor vehicle, its actual possession had passed to a third party. In view of this finding, the trial judge cannot be right under section 8 of the Traffic Act when she states that the true owner of the motor vehicle was the appellant.”
38. In any case, it must be understood that ownership is not a sine qua non liability. The mere fact that a person owns a vehicle does not make him liable for an accident in which it is involved. There has to be a reason that the driver was driving as an agent of the owner. In the case of Jane Wairumu Turanta v Githae John Vickery & 2 others [2013] KEHC 5826 (KLR) , R Ougo, J, held as follows:
The doctrine of vicarious liability was expounded in the case of Morgan –vs- Launchbury (1972)2 All ER 606 which stated that to establish agency relationship it was necessary to show that the driver was using the car at the owners request express or implied or in his instruction and was doing so in the performance of the task or duty thereby delegated to him by the owner. Moreover, the fact that the applicant was the owner of the vehicle by way of the logbook being in its name, Such ownership was not sufficient to create vicarious liability for the negligence of anyone who happened to drive it.
It is a common ground now that the Munene Don was not the servant of the applicant within the normally accepted meaning of vicarious liability from the facts Munene Don and the bank would not ordinarily be vicariously liable for the tort of Munene Don since he was not an agent. The case of HCM Anyanzwa &2 others –vs-Lugi De Casper &Anor (1981) KLR 10 stated that “ vicarious liability depends not on ownership but on the delegation of tasks or duty ”
39. Indeed, the police abstract indicated the name of the owner of the vehicle as Joshua Motiri Nyasinga, and his insurance was given. The raison d'être for not suing the owner indicated in the police abstract is beyond peradventure. The abstract was available as far back as 29.11.2017. The police abstract contained details of ownership and insurance.
40. The same was not impeached in terms of ownership. It was driven by a particular driver, an agent of Sunda Nyamanya Onguti. There is no evidence that the said vehicle was used for the benefit of the appellant. The issue has been dealt with by this court and the Court of Appeal, and the court has held that continuing to walk a beaten path serves no useful purpose. Regard should be given to the cases of Superfoam Ltd & Another v Gladys Nchororo Mbero [2014] KEHC 6986 (KLR) , where the court, JA Makau, stated as follows:
In the case of Samwel Mukunya Kamunge V John Mwangi Kamuru Civil Application No.34 of 2002 Hon. H. M. Okwengu, J as she then was stated:-
“It is true that a certificate of search from the Registrar of motor-vehicle would have shown who was the registered owner of the motor-vehicle according to the records held by the Registrar of motor vehicle. That however is not conclusive proof of actual ownership of the motor vehicle as section 8 of the Traffic Act provides that the contrary can be proved. This is in recognition of the fact that often time’s vehicles change hands but the records are not amended.
I find that the trial magistrate was wrong in holding that only a certificate of search from the Registrar of motor vehicle could prove ownership of the motor-vehicle. I find a police abstract report having been produced showing the Respondent as the owner of motor vehicle KAH 264A, and evidence having been adduced that letters of demand sent to the Respondent elicited no response from him denying ownership of the motor vehicle, and the Respondent having offered no evidence to contradict the information on the police abstract report, the appellant had established on a balance of probability that motor vehicle KAH 264A was owned by the Respondent.
I also on this point refer to the case of Wellington Nganga Muthiora V Akamba Public Road Services Ltd & Another CA NO.260 OF 2004(Kisumu) (2010) eklr Court of Appeal sitting at Kisumu held:
“Where police abstract was produced and there was no evidence adduced by a defendant to rebut it and not even cross-examination challenged it, the police abstract being a prima facie evidence not rebutted could be relied on as proof of ownership in the absence of anything else as proof in civil cases was within the standards of probability and not beyond reasonable doubt as is in criminal cases. However, where it was challenged by evidence or in cross-examination, the plaintiff would need to produce certificate from the Registrar or any other proof such as an agreement for sale of the motor vehicle which would only be conclusive evidence in the absence of proof to the contrary”
41. In the case of Nancy Ayemba Ngaira V Abdi Ali [2010] KEHC 1866 (KLR) , the court addressed the said issue as follows:
Section 8 of the Traffic Act is fully cognizant of the fact that a different person, or different other persons, may be the de facto owners of the motor vehicle – and so the Act has an opening for any evidence in proof of such differing ownership to be given. And in judicial practice, concepts have arisen to describe such alternative forms of ownership: actual ownership ; beneficial ownership ; possessory ownership . A person who enjoys any of such other categories of ownership, may for practical purposes, be much more relevant than the person whose name appears in the certificate of registration; and in the instant case at the trial level, it had been pleaded that there was such alternative kind of ownership. Indeed, the evidence adduced in the form of the Police Abstract, showed on a bala
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2. The Appeal is against liability and the award of damages. However, the Appellant filed a 11-paragraph Memorandum of Appeal. It is certainly not edifying for advocates to present 11 argumentative grounds of appeal, and end up arguing only two issues. This is anathema the provisions of Order 42 Rule 1 of the Civil Procedure Rules, which posits as doth: -
“Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading. (2) The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.
3. The Court of Appeal had this to say about compliance with Rule 86 of the Court of Appeal Rules (which is pari materia with Order 42 Rule 1 of the Civil Procedure Rules) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR: -
“We are yet again confronted with an appeal founded on a memorandum of appeal that is drawn in total disregard of rule 86 of the Court of Appeal Rules. That rule demands that a memorandum of appeal must set forth concisely, without argument or narrative, the grounds upon which a judgment is impugned. What we have before us are some 18 grounds of appeal that lack focus and are repetitively tedious. It is certainly not edifying for counsel to present two dozen grounds of appeal, and end up arguing only two or three issues, on the myth that he has condensed the grounds of appeal. This Court has repeatedly stated that counsel must take time to draw the memoranda of appeal in strict compliance with the rules of the Court. (See Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v. IEBC & 2 Others [2018] eKLR. In the latter case, this Court lamented:
“We must reiterate that counsel must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric…A surfeit of prolixious grounds of appeal do not in anyway enhance the chances of success of an appeal. If they achieve anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs.” The 18 grounds of appeal presented by the appellant, Robinson Kiplagat Tuwei against the judgment of the Environment and Land Court at Eldoret (Odeny, J.) dated 19th September 2018 raise only two issues…”
4. Repetitive grounds of appeal tend to cloud the key issue in dispute for determination by the Court. The same issue was addressed succinctly court of appeal in the case of Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR as follows:
“Our first observation is that the memorandum of appeal in this matter sets out repetitive grounds of appeal. The singular issue in this appeal is whether Section 62 of the Kenya Ports Authority Act ousts the jurisdiction of the High Court. We abhor repetitiveness of grounds of appeal which tend to cloud the key issue in dispute for determination by the Court. In William Koross V. Hezekiah Kiptoo Kimue & 4 others, Civil Appeal No. 223 of 2013 , this Court stated:
“The memorandum of appeal contains some thirty-two grounds of appeal, too many by any measure and serving only to repeat and obscure. We have said it before and will repeat that memoranda of appeal need to be more carefully and efficiently crafted by counsel. In this regard, precise, concise and brief is wiser and better.”
5. The grounds are thus ancillary, repetitive, prolixious and a waste of judicial time. This court will have to deal with whether the magistrate erred in finding the Appellants 100% liable and in the award of the damages. The only two issues are whether the court misapprehended evidence in its finding on liability and whether the award of damages was inordinately high or unsupported.
6. The Plaint dated 2.3.2023 claimed damages arising from an accident that occurred on 28.12.2022. The accident involved the Plaintiff while a passenger motor vehicle registration no. KDG 735M along Rongo-Migori Road at Texas Petrol Station when the said motor vehicle was driven negligently and it hit unknown tractor from behind as a result of which the Plaintiff sustained person injuries.
7. The Plaintiff set forth particulars of negligence for the accident motor vehicle. The Plaintiff pleaded Ksh. 316,550/= as Special Damages and also pleaded General Damages. The injuries were pleaded as follows:
a. Compound fracture of the left tibia/fibula.
b. Bruises on the elbows
8. The Respondent entered appearance and filed defence denying the particulars of negligence and injuries pleaded in the Plaint.
9. The Trial Court heard the parties and proceeded to render Judgement allowing general damages at Ksh. 1,000,000/=, future medical expenses of Ksh. 300,000/= and special damages of Ksh. 16,550/=. Aggrieved by the finding of the Trial Court, the Appellant lodged a Memorandum of Appeal hence this Appeal.
Evidence
10. During the hearing, PW1 was Dennis Owino Omollo. He adopted his statement dated 2.3.2023 and produced the documents in his list of documents filed in court. on cross examination, he testified that he was seated behind the driver. The accident occurred on 28.12.2022.
11. PW2 was No. 89421, CPL Chacha Joseph a police officer attached to the Awendo Police Station Traffic Base. He relied on the police abstract for the accident that allegedly occurred on 28.12.2022 at 2000hrs. It was his case that motor vehicle tried to overtake an unknown tractor. The driver noticed an oncoming motor vehicle and avoided colliding with it and so rammed into the rear of the tractor causing injuries to the passengers on board. On cross examination, he testified that he got the details of the accident on the occurrence book. It was not produced. The 2 nd Respondent was the driver.
12. PW3 was Dr. Aggrey Idakiza Akidiva. He produced his medical report. He examined the 1 st Respondent on 23.2.2023. he sustained a compound fracture of the left tibia and bruise on the elbows. He suffered 45 % disability. On cross examination, he examined the x ray image. He charged Ksh. 16,000/=.
13. On his part, the Appellant testified as DW1, Enock Kambaya. He was credit manager of the Appellant. He testified that had they sold the accident motor vehicle to the 2 nd Respondent vide sale agreement dated 28.12.2021.
Submissions .
14. The appellant filed submissions dated 10.12.2025 submitting that they had sold the vehicle one year earlier. Attention was drawn on clauses 8 and 11 of the agreements. They submitted that the second respondent should be solely liable.
15. It was their position that the registration was merely to secure a financial interest. They relied on the case of NCBA Bank Kenya PLC (Formerly National Industrial Credit Bank (K) PLC) v Shikanga & 2 others (Miscellaneous Application E074 & E075 of 2022(Consolidated)) [2023] KEHC 584 (KLR). They also relied on the case of Consolidated Bank of Kenya Limited v Mwangi & another (Civil Appeal E056 of 2021) [2022] KEHC 3104 (KLR), where DAS Majanja held as follows:
12. Having established beyond peradventure that the Appellant’s interest in the Motor Vehicle is to secure its financial interest, the next question is whether the Appellant is liable as contended by the Respondent. The learned trial magistrate did not address this issue the decision despite extensive submissions on the matter by the Appellant.
13. Ownership of a motor vehicle does not, of itself, establish liability for an accident. The plaintiff must prove that the owner is vicariously liable for the acts of the driver of the motor vehicle by showing that the driver is an employee or agent (see Jane Wairimu Turanta v Githae John Vickery and Equity Bank
Limited & Munene Don ML HCCC No. 483 of 2012 [2012] eKLR). As whether the owner who has a financial interest in a motor vehicle has control over the driver, which is at the heart of this appeal, our courts have held that a financier’s only interest in the security is to secure the repayment from the owner and it is not in control of the motor vehicle for that reason. In Ali Abdi Dere v Hash Hauliers Limited & Another MKS HCCC No. 16 of 2014 [2018] eKLR the court held that the position of a financier was merely to protect its interest in the motor vehicle it had nanced and could not be held vicariously liable for the actions of its driver while in Justus Kavisi Kilonzo v Coast Broadway Company Limited MSA HCCC No. 169 of 2007 [2008] eKLR the court was of the view that a nancier who had been
registered as a co-owner of a motor vehicle did not mean that it was a necessary party to proceedings.
The same position was taken by the Court of Appeal in Mohammed Hassan Musa and Another v Peter Mailanyi and Another NYR CA Civil Appeal No. 243 of 1998 [2000] eKLR stated as follows:
There is one other aspect of this appeal that we feel we must comment on. The plaintiff is an Advocate of the High Court of Kenya but in his attempt to realise the decree he resorted to what in effect amounted to jungle law. The third defendant, Diamond Trust (K) Ltd, which had nothing to do with the accident but had merely only financed the purchase of the motor vehicle which caused the accident was wrongly sued and attached.
16. It was further submitted that section 8 of the Traffic Act is prima facie ownership and not conclusive proof. The appellant rebutted the presumption by the abstract produced by the first appellant and the sale agreement. Reliance was placed on the case of Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] KECA 616 (KLR) , where the court of appeal [Karanja, Okwengu & G. B. M. Kariuki, JJ. A] held as follows:
Section 8 of the Traffic Offences Act provides that
“The person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle.”
This section has been interpreted to mean that the registration of the motor-vehicle is not conclusive proof of ownership. In the case of Osapil v. Kaddy [2000] 1 EALA 187 the Court of Appeal of Uganda held that a registration card or logbook was only prima-facie evidence of title to a motor vehicle. The person in whose name the vehicle was registered was presumed to be the owner thereof unless proved otherwise.
This Court adopted the interpretation above in the case of Securicor Kenya Ltd v. Kyumba Holdings Civil Appeal No. 73 of 2002 (Tunoi, O’Kubasu’ Deverell JJ.A) and held that;
“Our holding finds support in the decision in OSAPIL VS. KADDY [2000] 1 EALA 187 in which it was held by the Court of Appeal of Uganda that a registration card or logbook was only prima facie evidence of title to a motor vehicle and the person whose name the vehicle was registered was presumed to be the owner thereof unless proved otherwise. The appellant had, indeed, proved otherwise.”
Also recently, this Court in the case of Joel Muga Opinja v. East Africa Sea Food Ltd [2013] eKLR restated this position as follows:
“We agree that the best way to prove ownership would be to produce to the Court a document from Registrar of motor vehicles showing who the registered owner is but when the abstract is not challenged and is produced in Court without any objection, the contents cannot later be denied”
17. It was their submissions that the abstract corroborates the appellant’s evidence. On quantum they submitted that a sum of Ksh 500,000/= will suffice while future medical expenses ought to be dismissed.
18. The first respondent filed submissions dated 16.01.2026, stating that there are two issues, that is liability for motor vehicle registration number KDG 735M and damages of Ksh 1,000,000/= as general damages and Ksh. 300,000/= as future medical expenses. The submitted that the appellant relied on section 8 of the evidence act and did not do more. Further that possession does not amount to ownership. Reliance was placed on the cases of Benard Muia Kilovoo v Kenya Fresh Produce Exporters [2020] KEHC 5255 (KLR) , where the court, L.W. Gitari held as follows:
41. The Court of Appeal in these binding decisions is clearly stating:
(i) That the presumption that the person registered as owner of the motor vehicle in the logbook is the actual owner is rebuttable.
(ii) Where there exists other compelling evidence to proof otherwise then the court can make a finding of ownership that is different from that contained in the logbook.
(iii) Each case must however be considered in its own peculiar facts.
42. In this case the appellant did not produce a search from the Registrar of Motor-vehicle as proof of ownership. He relied on a Police abstract which was not challenged by the respondent and the respondent cannot deny the contents in the police abstract See the case of ; Joel Muga Opinja -vs- East Africa Sea food Limited ( 2013) eKLR ( supra).
19. On being found 100% liable, they relied on the case of Kenya Power & Lighting Company Ltd v JWK (Suing as father and next-friend of JKW) & another (Civil Appeal E012 of 2021) [2023] KEHC 1642 (KLR), where Mugambi L, J, held as follows:
In apportionment of liability, I am guided by the case of Khambi and Another vs. Mahithi and Another [1968] EA 70, where it was held that:
“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.”
20. They submitted that the appellant did not tender evidence on liability. Reliance was placed on the case of John Wainaina Kagwe V Hussein Dairy Limited [2010] KEHC 1764 (KLR) .
21. They submitted that a passenger does not have control over an accident. they relied on the case of Boniface Waiti & Another Vs Michael Kariuki Kamau (2007) eKLR.
22. They also addressed the question of quantum, that the same was proper. I have not seen the second Respondent’s submissions.
Analysis
23. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a subordinate court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.
24. This Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong. In the case of Mbogo and Another vs. Shah [1968] EA 93 the court stated:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
25. The duty of the first appellate court was set out in the case of Selle and another Vs Associated Motor Board Company and Others [1968] EA 123 , where the court in their usual gusto, held as follows; -
“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-subordinate and the Court of Appeal is not bound to follow the subordinate Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
26. The Court is to bear in in mind that it had neither seen nor heard the witnesses. It is the subordinate court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them.
27. This court’s the jurisdiction to review the evidence should be exercised with caution. In the cases of Peters vs Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows: -
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
28. Bearing in mind that the court does not have the advantage of seeing and hearing the witnesses as did the lower court, yet this court must reconsider the evidence, evaluate it itself and draw its own conclusions.
29. The court is asked to establish whether the lower court erred in finding, on a balance of probabilities that the 1 st Respondent proved his case on liability at 100% against the Appellant. The legal burden of proof lies upon the party who invokes the aid of the law and asserts an issue based thereon. In Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334 , the Court of Appeal held that:
“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
30. It follows that the initial burden of proof lies on the Plaintiffs, but the same may shift to the Defendant, depending on the circumstances of the case. In Evans Nyakwana –vs- Cleophas Bwana Ongaro [2015] eKLR it was held that:
“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”
31. This is not a criminal trial. It is a civil trial in which the court must find for one party or the other on the balance of probabilities. The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 as follows:
“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 opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”
32. This was further enunciated in the case of Palace Investments Limited v Geoffrey Kariuki Mwenda & Dollar Auctions [2015] KECA 616 (KLR) , where the Court of Appeal [J Karanja, GG Okwengu, CM Kariuki, JJA] stated as follows:
The burden of proof is placed upon the appellant and is to be discharged on a balance of probabilities. Denning J. in Miller –vs- 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 more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
33. The balance of probabilities is also about what is likely to have happened than the other. In Lord Nicholls of Birkenhead in Re H and Others (Minors) [1996] AC 563, 586 held that;
“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the even was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriated in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…..”
34. Furthermore, the standard of proof in civil cases must carry a reasonable degree of probability, but not so high as is required in a criminal case for such standard is based on a preponderance of probabilities. In Palace I nvestment Ltd –vs- Geoffrey Kariuki Mwenda & Another [2015] eKLR , the Judges of Appeal held that:
“Denning J, in Miller –vs- 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 a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.
This, burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will loose because the requisite standard will not have been attained.”
35. The 1 st Respondent herein was a passenger in the accident motor vehicle. It was his case that the motor vehicle was driven at a high speed and it caused an accident in which it hit a tractor on the rear and he suffered injuries. In my revaluation of the evidence and testimonies in the lower court, the 1 st Respondent was not to blame in any way. The second respondent was to blame for the accident. However, the question is whether the appellant was vicariously liable for the accident herein. Their main and only defence was that they sold the suit motor vehicle. The police record produce by the first respondent indicated that the owner was Sunda Nyamwanya Onguti. He is also indicted as the insured.
36. The appellant issued a third-party notice to the second respondent. In the case there was amble evidence that the appellant was not the owner of the driver. The appellant was also not vicariously liable for the accident. Can a registered owner be held liable for a vehicle for which he is not in control?
37. The registered owner was able to show that she sold the vehicle to the second Respondent way back on 28.12.2021. The actual owner or the subsequent buyer was joined to the suit. Service on the third party was effected. The position on the aspects of section 8 of the Traffic Act was addressed in the case of Securicor Kenya Limited v. Kyumba Holdings Limited [2005] 1KLR 748 , the Court of Appeal found as follows:
“It was apparent, therefore, that though the appellant remained the registered owner of the motor vehicle, its actual possession had passed to a third party. In view of this finding, the trial judge cannot be right under section 8 of the Traffic Act when she states that the true owner of the motor vehicle was the appellant.”
38. In any case, it must be understood that ownership is not a sine qua non liability. The mere fact that a person owns a vehicle does not make him liable for an accident in which it is involved. There has to be a reason that the driver was driving as an agent of the owner. In the case of Jane Wairumu Turanta v Githae John Vickery & 2 others [2013] KEHC 5826 (KLR) , R Ougo, J, held as follows:
The doctrine of vicarious liability was expounded in the case of Morgan –vs- Launchbury (1972)2 All ER 606 which stated that to establish agency relationship it was necessary to show that the driver was using the car at the owners request express or implied or in his instruction and was doing so in the performance of the task or duty thereby delegated to him by the owner. Moreover, the fact that the applicant was the owner of the vehicle by way of the logbook being in its name, Such ownership was not sufficient to create vicarious liability for the negligence of anyone who happened to drive it.
It is a common ground now that the Munene Don was not the servant of the applicant within the normally accepted meaning of vicarious liability from the facts Munene Don and the bank would not ordinarily be vicariously liable for the tort of Munene Don since he was not an agent. The case of HCM Anyanzwa &2 others –vs-Lugi De Casper &Anor (1981) KLR 10 stated that “ vicarious liability depends not on ownership but on the delegation of tasks or duty ”
39. Indeed, the police abstract indicated the name of the owner of the vehicle as Joshua Motiri Nyasinga, and his insurance was given. The raison d'être for not suing the owner indicated in the police abstract is beyond peradventure. The abstract was available as far back as 29.11.2017. The police abstract contained details of ownership and insurance.
40. The same was not impeached in terms of ownership. It was driven by a particular driver, an agent of Sunda Nyamanya Onguti. There is no evidence that the said vehicle was used for the benefit of the appellant. The issue has been dealt with by this court and the Court of Appeal, and the court has held that continuing to walk a beaten path serves no useful purpose. Regard should be given to the cases of Superfoam Ltd & Another v Gladys Nchororo Mbero [2014] KEHC 6986 (KLR) , where the court, JA Makau, stated as follows:
In the case of Samwel Mukunya Kamunge V John Mwangi Kamuru Civil Application No.34 of 2002 Hon. H. M. Okwengu, J as she then was stated:-
“It is true that a certificate of search from the Registrar of motor-vehicle would have shown who was the registered owner of the motor-vehicle according to the records held by the Registrar of motor vehicle. That however is not conclusive proof of actual ownership of the motor vehicle as section 8 of the Traffic Act provides that the contrary can be proved. This is in recognition of the fact that often time’s vehicles change hands but the records are not amended.
I find that the trial magistrate was wrong in holding that only a certificate of search from the Registrar of motor vehicle could prove ownership of the motor-vehicle. I find a police abstract report having been produced showing the Respondent as the owner of motor vehicle KAH 264A, and evidence having been adduced that letters of demand sent to the Respondent elicited no response from him denying ownership of the motor vehicle, and the Respondent having offered no evidence to contradict the information on the police abstract report, the appellant had established on a balance of probability that motor vehicle KAH 264A was owned by the Respondent.
I also on this point refer to the case of Wellington Nganga Muthiora V Akamba Public Road Services Ltd & Another CA NO.260 OF 2004(Kisumu) (2010) eklr Court of Appeal sitting at Kisumu held:
“Where police abstract was produced and there was no evidence adduced by a defendant to rebut it and not even cross-examination challenged it, the police abstract being a prima facie evidence not rebutted could be relied on as proof of ownership in the absence of anything else as proof in civil cases was within the standards of probability and not beyond reasonable doubt as is in criminal cases. However, where it was challenged by evidence or in cross-examination, the plaintiff would need to produce certificate from the Registrar or any other proof such as an agreement for sale of the motor vehicle which would only be conclusive evidence in the absence of proof to the contrary”
41. In the case of Nancy Ayemba Ngaira V Abdi Ali [2010] KEHC 1866 (KLR) , the court addressed the said issue as follows:
Section 8 of the Traffic Act is fully cognizant of the fact that a different person, or different other persons, may be the de facto owners of the motor vehicle – and so the Act has an opening for any evidence in proof of such differing ownership to be given. And in judicial practice, concepts have arisen to describe such alternative forms of ownership: actual ownership ; beneficial ownership ; possessory ownership . A person who enjoys any of such other categories of ownership, may for practical purposes, be much more relevant than the person whose name appears in the certificate of registration; and in the instant case at the trial level, it had been pleaded that there was such alternative kind of ownership. Indeed, the evidence adduced in the form of the Police Abstract, showed on a bala
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