[2023] KEHC 26376 (KLR)

Abuga v Car and General (Trading) Limited (Civil Appeal E902 of 2022) [2023] KEHC 26376 (KLR) (7 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26376 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil Appeal E902 of 2022

AN Ongeri, J

December 7, 2023

Between

Zablon Abuga

Appellant

and

Car And General (Trading) Limited

Respondent

(Being an appeal from the judgment and decree of Hon. Caroline Ndumia (SRM) in Milimani SCCC No. E2006 of 2022 delivered on 7/10/2022)

Judgment

1. The appellant herein Zablon Abuga, filed Milimani SCCC No. E2006 of 2022 against the respondent, Car And General (trading) LTD seeking general damages for pain and suffering and special damages of ksh.11,040 for injuries the appellant sustained on 3/4/2022.

2. The appellant was travelling on the material day along Ngong road as a pillion passenger on motorcycle registration no. KMFN 514W when the rider caused it to ram into motor vehicle registration no. KAD 974S causing the appellant serious injuries.

3. The respondent provided prove that the motor cycle was sold to one Erick Otieno at the time of the accident.

4. The trial court dismissed the appellant’s case. The appellant has appealed against the dismissal on the following grounds;i.That this appeal be allowed.ii.That judgment and decree thereof of the small claims court, Milimani be set aside and damages payable to the appellant be assessed.iii.That the respondent be held 100% liable for causing the accident.iv.That the costs of this appeal be awarded to the appellant.

5. The parties filed written submissions as follows; the appellant submitted that at trial the appellant produced a copy of records for motor cycle KMFN514W which indicated the respondent as the registered owner of the said moto cycle.

6. That upon production of the records the burden shifted to the respondent to prove that it did not own it. The respondent relied on a tax invoice in support of its assertion that the motor cycle belonged to a third party who bought it from it.

7. It was the appellants submission that the said document is indicative of a transaction taking place between the respondent and the alleged third party but does not prove ownership.

8. The appellant argued that that weighing the respondent’s evidence on the issue of ownership before the trial court which consisted of a tax invoice and employee list and in the absence of a calid sale agreement it is impossible to determine whether the property passed to the third party. It can therefore be inferred that the respondent was therefore the owner of the motor cycle.

9. The appellant submitted that pursuant to Order 1 Rule 15 (1) of the Civil Procedure Rules the respondent ought to have applied for the trial court to issue a third party notice to the alleged third party but failed to do so and hence cannot be allowed to avoid liability.

10. On damages the appellant proposed a sum of Kshs. 800,000 as the appellant sustained a fracture of the right tibia and fibula with 4% permanent disability and relied on the following authorities;a.Mutembei vs Maurice Ochieng Odoyo [2019] eKLR where Court substituted an award of Kshs. 1,600,000/ = with Kshs. 800,000/ = for injuries being proximal fracture of the left tibia.b.Deneva Heavy Trucks & another vs Chrispine Otieno [2022] eKLR where an award of Kshs.1,000,000 was substituted with Kshs. 800,000 for similar injuries to the one the Appellant herein suffered.

11. The respondent submitted that it sold the suit motorcycle on 21/8/2021 to Eric Otieno Ayugi prior to the date of the accident.

12. Further, that the respondent’s witness established that the respondent is in business of sale of motorcycles and three-wheeler motor vehicles and it is a requirement for all dealers to have the motorcycles and motor vehicles being registered in their respective names and it was for that reason the respondent registered the suit motorcycle in its name.

13. It was the respondent’s submission that it was only a paper owner of the suit motorcycle and should not be held liable for the accident.

14. The respondent indicated that the respondent was sued based on a search from the National Transport and Safety Authority that identified the respondent as the owner of the motorcycle. The respondent argued that it has been held however it has been held that the presentation of a search document is not sufficient to prove ownership as it was observed by Okwengu J in Samuel Mukunya Kamunge v John Mwangi Kamuru in Civil Appeal No. 34 of 2002 that;“The trial magistrate was wrong in holding that only a search certificate from the registration of motor vehicles could prove ownership of a motor vehicle... a police abstract report having been produced showing the Respondent as the owner of the motor vehicle was prove of ownership.”

15. The respondent submitted that the police abstract connotes that the said motorcycle was insured under Sanlam General Insurance Company and it was the evidence of the police officer that the insured was Zablon and not the respondent herein as the sale of the said motorcycle took away insurable interest from the respondent.

16. The respondent submitted that the paid-up tax invoice contained the details of the purchaser, vendor, particulars of goods and consideration for the said good, payment stamp and that the said motorcycle was collected by the purchaser. The sale of the motor cycle took place on 21/8/2021 between the respondent and the purchaser, Erick Otieno Ayugi. There was an absolute cash sale between the respondent and the purchaser whereupon the purchaser took possession of the motorcycle immediately upon purchase.

17. The respondent on liability submitted that it neither at time of the accident directed nor delegated work, given instructions to the rider of the suit motorcycle to act on its behalf having sold the suit motorcycle prior to the date of the accident thereby becoming a stranger to all activities surrounding the motorcycle.

18. This being a first appeal, the duty of the first appellate court is to re-evaluate the evidence before the trial court and to arrive at its own conclusion whether to support the findings of the trial court while bearing in mind that the trial court had the opportunity to see the witnesses. In Selle –Vs- Associated Motor Boat Co. [1968] EA 123 it was held in the following terms: -“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”

19. The issues for determination in tis appeal are as follows;i.Whether the trial court was right in dismissing the appellant’s case.ii.Whether the respondent should have enjoined the buyer of the motor cycle as a 3rd party.iii.Whether the appeal should be allowed.

20. On the issue as to whether the trial court was right in dismissing the appellants case, I find that the trial court relied on Section 8 of the Traffic Act which states as follows;Owner of vehicle“The person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle”.

21. In the case of Nancy Ayiemba Ngaira v Abdi Ali C.A No. 107/2008[2010] eKLR where Justice J.B Ojwang (as he then was) observed as follows;“There is no doubt that the registration certificate obtained from the Registrar of motor vehicles will show the name of the registered owner of a motor vehicle. But the indication thus shown on the certificate is not final proof that the sole owner is the person whose name is shown. 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.”

22. In the current case the trial court found that the person named as the owner had sold the motorcycle to someone else.

23. find that it was the duty of the respondent to enjoin the buyer as a 3rd party to this case.

24. In the case of Joel Mugo Opija [2013] eKLR the court of appeal held as follows;“…. We agree that the best way to prove ownership would be to produce to the court a document from the Registrar of motor vehicles showing who the registered owner is but where the abstract is not challenged and is produced in court without any objection, its contents cannot later be denied.”

25. In the current case there was no document produced to show that the Respondent had sold the motorcycle such as a sale agreement.

26. The evidence that the appellant was travelling on the material day along Ngong road as a pillion passenger on motorcycle registration no. KMFN 514W when the rider caused it to ram into motor vehicle registration no. KAD 974S causing the appellant serious injuries has not been disputed.

27. The trial ought to have held the Respondent vicariously liable as the as the registered owner of the said moto cycle.

28. The Respondent did not enjoin the alleged buyer as a 3rd party to the case.

29. I allow the appeal and set aside the judgment of the trial court and I replace it with a judgment in favor of the appellant against the respondent.

30. I direct the parties to file written submissions to assist the court to assess damages.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 7TH DAY OF DECEMBER, 2023. ..........................A. N. ONGERIJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent