https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10366

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **CIVIL APPEAL NO. E109 OF 2023** **ANNE GATWIRI MBAE ………………. APPELLANT** **Versus** **CHARITY MUGOIRI MWANGI ………………. 1st RESPONDENT** **AND** **PANIJ AUTOMOBILES (K) LTD………………. 2nd RESPONDENT** **JUDGEMENT** **Introduction** 1. This appeal arises out of the judgement of the court in Makindu Senior Principal Magistrate Court Civil Suit No. 16 of 2019 delivered on 9th November, 2023 in which the trial magistrate awarded the1st Respondent Charity Mugoiri Mwangi Kshs. 303,000/= and entered judgement against the Appellant and 2nd Respondent. 2. The 1st Respondent was the Plaintiff in the suit and she had sued the Appellant for compensation for injuries suffered in a road traffic accident that occurred on 24th August, 2017. The 2nd Respondent was a third party in the suit before the trial court. The trial court found the Appellant and 2nd Respondent liable for the accident jointly and severally and judgement was entered in favor of the Appellant. 3. Dissatisfied with the judgement of the trial court, the Appellant filed the present appeal vide a memorandum of appeal dated 20/11/2023 with the following listed grounds; 1. THAT the Learned Magistrate erred in law and fact by holding that the Appellant took too long to adduce the evidence relating to the purchase of the subject Motor Vehicle from the 2nd Respondent when there was evidence that the 2nd Respondent had delayed to provide the Appellant with a copy of the Agreement of Sale to a disclosed third party, who was in control and possession of the Motor Vehicle at the time of the accident and that the Appellant was not a party to that Agreement. 2. THAT the Learned Magistrate erred in law and fact in failing to hold that the Appellant adequately explained the delay in filing the evidence of sale of the subject Motor Vehicle. 3. THAT the Learned Magistrate erred in law and fact by failing to consider, take into account and appreciate uncontroverted evidence and sworn averments filed in the Suit by the 2nd Respondent that the subject Motor Vehicle had indeed been sold to a disclosed third party at the time of the accident. 4. THAT the Learned Magistrate erred in law and fact by failing to correctly interpret and consider the meaning, import and purport of the trade – in Agreement between the Appellant and the 2nd Respondent. 5. THAT the Learned Magistrate erred in law and fact by failing to find that the Appellant was not the actual owner and was not in possession and control of the subject Motor Vehicle at the time of the accident. 6. THAT the Learned Magistrate erred in law and fact by failing to review and/or set aside the Judgment when the 1st Respondent had conceded to the setting aside the Judgment and Decree against the 2nd Respondent in spite of the uncontroverted evidence that the 2nd Respondent had a duty to fully indemnify and make good any claim against the Appellant, having purchased and taken possession of the Motor Vehicle prior to the accident. 7. THAT the Learned Magistrate erred in law and fact by failing to apply well settled principles for review of Judgment and Decree that were applicable in this matter in exercising his discretion thereby resulting in hardship and injustice to the Appellant. 8. THAT the Learned Magistrate erred in law and in fact by arbitrarily and without basis dismissing the Appellant’s Application against the explanation and evidence that was placed before the Honourable Court. 9. THAT the Learned Magistrate erred in law by taking into consideration matters that were irrelevant for the purposes of determining the questions in dispute before the Honourable Court. 4. The Appellant asked the court to allow the appeal, revise the ruling delivered on 11/11/2023, set aside the trial court’s judgement and decree, and provide for costs of the appeal. **Appellant’s submissions** 1. The Appellant in her written submissions dated 5/08/2025, claims that the trial court's ruling delivered on 9th November 2023, dismissing her Application for stay of execution, review, and setting aside of the Judgment and Decree issued on 27th April 2023 was erroneous and against the weight of evidence. 2. On whether the Learned Magistrate erred in law and fact by failing to consider the evidence regarding the sale of the subject Motor Vehicle, the Appellant submitted that she had traded in the Motor Vehicle with the 2nd Respondent, who subsequently sold it to MATHEW NDUNGU MUNGAI on 23rd August 2017. She argued that the 2nd Respondent did not controvert this evidence, and the delay in producing the Sale Agreement was caused by the 2nd Respondent's non-cooperation, yet the Learned Magistrate faulted the Appellant for its non-production. Furthermore, she maintained that having sold the Motor Vehicle, ownership had passed to Mr. Mungai, and the Appellant held no duty to indemnify the 1st Respondent. She relied on the case if *Clifford Omondi Otieno v Geoffrey Muthiani Mutiso & Another* [2020] eKLR. 3. On whether the Learned Magistrate erred by arbitrarily dismissing the Appellant's Application against the explanation and evidence placed before Court, she submitted that the Learned Magistrate failed to offer any valid reason for disregarding the uncontroverted evidence of sale and wrongly interpreted Section 8 of the Traffic Act, which deems the registered owner as owner *unless the contrary is proved*. She argued that the Appellant's uncontroverted evidence served as reasonable ground to verify ownership beyond registration details, and no agency relationship was established between the Appellant and Mr. Mungai. To support her position, she relied on *Prime Capital & Credit Limited v Maundu & 2 others* [2022] KEHC 3225 (KLR), *Johnstone Njagi Kithaka v Nicholas Nzioka Mwasa & Another* [2018] eKLR, and *Qasim & Yahya Limited v Ngare & 2 Others* [2023] KEHC 19994 (KLR). 4. On whether the Learned Magistrate erred by failing to review and/or set aside the Judgment and Decree, she submitted that the Sale Agreement dated 23rd August 2017 constituted new and important evidence upon which her case hinges, as it determines ownership at the time of the accident. She argued that the Agreement was at all times in the possession of the 2nd Respondent, and despite multiple requests, it was not produced within proper timelines. Once availed, the Appellant produced it at the earliest opportunity. She further submitted that the Consent between the 1st and 2nd Respondents, which excluded the 2nd Respondent from liability, was irregular and prejudicial as it was adopted without the Appellant's concurrence or involvement, despite her having joined the 2nd Respondent as a Third Party. **Respondent’s submissions** 1. I note that at the time of writing this judgement, the Respondents had not filed their written submissions. **Analysis and determination** 1. This is the first appeal. My duty as the 1st appellate court is to re-evaluate and re- examine the evidence in the trial court and come to my own findings and conclusions, but in doing so, to have in mind that I neither heard nor saw the witnesses testify. 2. The core dispute in this matter hinges on who owned and controlled the subject motor vehicle at the time of the accident, which occurred on 24th August, 2017. I have looked at the record and the trial court found the Appellant jointly and severally liable primarily on the basis that she was the registered owner of the vehicle under Section 8 of the Traffic Act (Cap 403). 3. Section 8 of the Traffic Act provides thus: ***8. 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.* 1. The provision creates a rebuttable presumption which lied on the Appellant before the trial court to show that she was not the registered owner of the subject motor vehicle at the time of the accident. To discharge its burden before the trial court, the Appellant produced a vehicle sale agreement dated 1/08/2017 showing a trade-in between the Appellant and Panij Automobiles. However, the trial court observed that the agreement was for motor vehicle KCM 596L, not KBZ 433X. I find that the agreement dated 1/08/2017 did not, on its face, prove that the subject motor vehicle, KBZ 433X, had been sold before the accident of 24/8/2017 2. The record shows that the Appellant testified that she sold the motor vehicle to Panij Automobiles on 1st August 2017, and that Panij subsequently sold it to Mathew Ndungu Mungai on 23rd August 2017. However, the Appellant did not produce the sale agreement between Panij and Mr. Mungai at the hearing. She only produced this agreement during the application for review after judgment had been delivered. 3. I therefore no error in that finding, on the material that was before the trial court. 4. On the second issue, the Appellant sought review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules on the bases of discovery of the Sale Agreement between Panij Automobiles and Mathew Ndungu Mungai dated 23rd August 2017. 5. Section 80 of the Civil Procedure Act, and Order 45 of the Civil Procedure Rules 2010. Section 80 of the Civil Procedure Act states as follows; “80. Any person who considers himself aggrieved— (a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.” 1. Order 45 rule 1 of the civil procedure rules provides as follows: ***Application for review of decree or order [Order 45, rule 1]*** *(1) Any person considering himself aggrieved—* *(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or* *(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.* *(2)A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.* 1. From the above provisions, a review may only be granted where there is discovery of new and important evidence which, after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced at the time the decree was passed; or where there is a mistake or error apparent on the face of the record; or for any other sufficient reason. 2. I have looked at the sale agreement dated 23/08/ 2017 that the Appellant relied on as new evidence before the trial court, it was an agreement to which she herself was a party and signatory, as the seller of the subject motor vehicle to Mathew Ndungu Mungai. The Appellant argued that the agreement was in custody of the 2nd Respondent who had failed to produce it before the trial court. The record shows that she joined the 2nd Respondent as a third party, yet she did not take steps to compel production of the document. 3. I find that a document executed by the Appellant herself cannot be treated as evidence that was not within her knowledge or that she could not, with reasonable diligence, have produced at the trial. The trial court therefore reached a correct conclusion on this issue. 4. On the third issue, the Appellant submitted that the consent between the 1st and 2nd Respondents, which excluded the 2nd Respondent from liability, was irregular because it was adopted without the Appellant's involvement, yet she had joined the 2nd Respondent as a Third Party. 5. The record shows that on 28/09/2023, a consent was recorded between the Plaintiff/1st Respondent and the 3rd Party/2nd Respondent setting aside the judgment as against the 3rd Party. 6. In ***Wema Foundation Trust Company Limited v County Government of Nairobi City & Another [2022] eKLR***, the court stated that a consent binds only the parties to it and cannot be used to determine or extinguish the rights of a person who was not privy to it. 7. In the present case, the consent between the 1st and 2nd Respondents effectively released the 2nd Respondent from liability while leaving the Appellant solely liable. The Appellant had joined the 2nd Respondent as a third party seeking indemnity. I find the consent was therefore prejudicial to the Appellant's interests. 8. I find that the consent was irregular as it was entered into without the Appellant's involvement. However, this irregularity does not automatically entitle the Appellant to have the entire judgment set aside. The trial court should have considered the Appellant's application for review on its merits, which it did, and I have already found that the dismissal of that application was proper. **Disposition** 1. The upshot of the above is that the appeal is partly allowed. In the circumstances I make the following orders: 1. The appeal is partly allowed; 2. The consent recorded on 28th September 2023 between the 1st Respondent and 2nd Respondent is hereby set aside as against the Appellant; 3. The judgment of the trial court dated 27/04/2023 is hereby set aside in its entirety; 4. The matter is remitted to the trial court to be heard afresh as between the Plaintiff, the Defendant and the 2nd Respondent together; 5. Each party to bear their costs of this appeal. It is so ordered. Right of appeal 30 days. **Dated, signed and delivered via TEAMS at Nairobi this 3rd day of July, 2026.** ……………………….. **Hon. R. A. Oganyo, Mrs** **Judge.** **In the presence of: -** Court Assistant…... E, Sana Miss Maina h/b for Mr. Nderitu for the Appellant-We seek 30 days stay of execution pending appeal. **Order.** There be stay for 30 days pending appeal.