https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10992

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MIGORI** **CIVIL APPEAL NO. E053 OF 2025** **IRENE ATIENO………………………............................. APPELLANT** **-VERSUS-** **ENK ENTERPRISES……………………………………1ST RESPONDENT** **ERICK OKOMO AKUKU………………………………2ND RESPONDENT** ***(Being an appeal from the Judgment and decree of the Chief Magistrate Hon. S. Mutava SRM Rongo Civil Case No. E037 of 2024 delivered on 26th March, 2025)*** **JUDGMENT** **Background** 1. This is an appeal arising from judgment delivered on 26th March, 2025 in Rongo CMCC/E037/2024. The suit originated from the Plaint dated 21st March, 2024 filed by Irene Atieno being the plaintiff in the lower court (hereinafter the Appellant) and against ENK Enterprises LTD (the 1st Defendant, herein after the 1st Respondent) and Erick Okomo Akuku the 2nd Defendant herein after the 2nd Respondent) 2. In the suit, the Appellant sought reliefs against the Defendants in the nature of general damages, special damages of Kshs.45,550/- future medical expenses, costs and interests of the suit at court’s rate. The dispute arose out of a road traffic accident which occurred on or about 26th February, 2024. It was alleged that the 1st Respondent was at all material times the registered owner of motor vehicle registration number KDD 177Q while the 2nd Respondent was the beneficial owner. It was further pleaded in the plaint that on the material date, the subject motor vehicle was so negligently, carelessly driven or controlled and managed by the Respondents or their authorized driver/agent/employee that it lost control and veered off its lane causing a head on collision with motor vehicle KDD 209S injuring the Appellant who was a lawful passenger thereof. 3. The 1st Respondent filed its statement of defence dated 25th March, 2024 denying the averments made in the plaint in respect to negligence and liability on its part and filed a counterclaim. 4. The 2nd Defendant filed his Statement of defence dated 30th April, 2024 denying the averments in the plaint in respect to negligence and liability on his part. 5. The suit proceeded to full hearing with the testimonies of the Appellant and the Respondents. Upon close of submissions, the trial court delivered its judgment on 26th March, 2025 against the Respondents in the total sum of Kshs. 410,650/- made up as follows- 6. General damages Kshs.400,000/- 7. Special Damages 10,650; and 8. Costs of the suit and interest from the date of judgment at court’s rates until payment in full. 9. Aggrieved with the outcome, the Appellant preferred this appeal premised on the following grounds:- 10. ***That the learned Magistrate erred in law and fact in awarding the appellant, the plaintiff in the suit before the lower court, a sum of general damages that is manifestly low in the circumstances considering the injuries she suffered.*** 11. ***That the Learned Magistrate erred in law and fact by awarding general damages against the weight of medical evidence adduced.*** 12. ***That the Learned Magistrate erred in law and fact in failing to consider cited authorities* *and thus arrived at a wrong assessment of damages awardable.*** 13. The Appellant therefore seeks to have the trial Court’s judgment be revised to enhance damages awarded and the Appeal be allowed with costs. 14. Being aggrieved by the outcome, the 1st Respondent ENK Enterprises, filed a cross- appeal premised on the following grounds:- 15. ***The Learned Magistrate erred in law and fact in*** ***finding the 1st Respondent 100% liable despite the Appellant failing to prove negligence to the requisite standard.*** 1. ***The Learned Magistrate erred by disregarding material evidence indicating that the 1st Respondent did not have control/possession of the motor vehicle at the time of the accident.*** 2. ***The Learned Trial Magistrate erred in law and fact by failing to appreciate that liability in negligence and vicarious liability is founded on control and possession, and not mere historical ownership.*** 3. ***The Learned Trial Magistrate erred in law and fact by*** ***ignoring the evidence of DW1, which was corroborated by documentary evidence, showing that the motor vehicle had been sold and that the loan facility had been fully cleared prior to the accident.*** 4. ***The Learned Trial Magistrate erred in law and fact by apportioning liability without calling or relying on the testimony of the driver, any investigating officer, or any independent evidence establishing how the accident occurred or who was to blame.*** 5. ***The trial court improperly shifted the burden of proof to the Respondents by holding them liable in the absence of evidence establishing negligence or control. This was contrary to Sections 107, 108, and 109 of the Evidence Act.*** 6. The 1st Respondent therefore seeks to have the claim against it be dismissed and the finding of 100% liability be set aside and re-apportioned to the 2nd Respondent and the Appeal be allowed with costs. 1. Directions were subsequently taken that the appeal and the cross appeal be canvassed by way of written submissions. The Appellant’s counsel, through written submissions dated 4th January, 2026 submitted that the Appellant was satisfied with the assessment of liability and award of special damages but aggrieved by the assessment of quantum and prays that this court sets aside the judgment and re-assesses quantum of damages. Counsel further contended that the Appellant suffered injuries which left her 25% incapacitated. It was also contended that the trial court ignored evidence that the Appellant would require future medical expenses which could have been awarded. 2. Counsel relied on the case of ***Michael Njagi Karimi Vs. Gedion Ndungu & Another (2013) eKLR*** where the court awarded Kshs.2,000,000/- for comparable injuries. He further relied on the case of ***Antony Peter Wainaina Vs Jumba Patrick Oganda & 3 others*** ***(2021) KEHC 6726 (KLR)*** where the court awarded Kshs.2,500,000/- for comparable injuries. 3. The 1st Respondent/Cross-Appellant through their Counsel condensed their submissions into three issues namely: whether the trial court properly evaluated the evidence before the court and correctly apportioned 100% liability against the 1st Respondent; whether the 1st Respondent was liable for the accident despite evidence that it neither possessed nor controlled the subject motor vehicle at the time of the accident and whether the court founded its judgment on sound principles of law relating to the burden of proof. 1. On the issue of **liability**, the Cross-Appellant submitted that the trial court-imposed liability without proof of negligence and without evidence establishing breach of duty or causation. It was argued that the Plaintiff failed to discharge the burden of proof required in negligence claims. In support of this position, the Cross-Appellant relied on ***Treadsetters Tyres Ltd v John Wekesa Wepukhulu [2010] KEHC 341 (KLR)*** and the provisions of Sections 107 and 109 of the Evidence Act. 2. On **vicarious liability**, the Cross-Appellant submitted that the motor vehicle had already been sold prior to the accident, the loan had been fully settled and possession and control had passed to the purchaser. It was argued that ownership alone could not attract liability in the absence of proof of control or agency. It placed reliance on Section 8 of the Traffic Act. 1. The Cross-Appellant further relied on ***Tabitha Nduhi Kinyua v Francis Mutua Mbuvi & Another [2014] eKLR*** *and* ***Anyanzwa v Gasperis [1981] KECA 2 (KLR)****.* Counsel also referred the court to the sale agreement which provided that upon taking possession, the purchaser assumed responsibility for insurance, accidents, theft, and all liabilities associated with the vehicle. It was therefore submitted that liability could not lawfully attach to the Cross-Appellant. 2. On the burden of proof, the Cross-Appellant submitted that the trial court improperly shifted the burden from the Plaintiff to the Respondents contrary to Sections 107, 108 and 109 of the Evidence Act. Reliance was placed on ***Karugi & Another v Kabiya & 3 Others (Civil Appeal No. 80 of 1982) [1983] KECA 38 (KLR)*** *and* ***Treadsetters Tyres Ltd v John Wekesa Wepukhulu (supra).*** Counsel argued that the Plaintiff failed to establish negligence and causation and that the trial court erroneously imposed liability in the absence of proof. 3. On costs, the Cross-Appellant relied on Section 27(1) of the Civil Procedure Act and***Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR****,* submitting that costs should follow the event. The court was urged to award the costs of the cross-appeal to the Cross-Appellant. 4. The Cross-Appellant submitted that the finding of liability against it was unsupported by evidence and contrary to established legal principles. The court was urged to allow the cross-appeal, set aside the finding of liability against the 1st Respondent, and award costs accordingly. 5. The 2nd Respondent filed his written submissions dated 20th May, 2026 condensing his submissions into two issues namely: whether the 2nd Respondent was liable for the accident despite the fact that none of the witnesses laid blame on him; and whether the court founded its judgment on sound principles of law relating to the burden of proof. 6. On **liability**, Counsel submitted that the burden of proof rested upon the Appellant pursuant to Section 107(1) of the Evidence Act. It was argued that the Appellant failed to prove negligence against the 2nd Respondent on a balance of probabilities. Counsel submitted that the Appellant testified that she was a passenger in motor vehicle registration number KDD 209S and that she lost consciousness during the accident and only regained consciousness in hospital. Consequently, she could not explain how the accident occurred or attribute blame to any party. 1. The 2nd Respondent further submitted that the police evidence did not blame him for the accident. Counsel contended that evidence adduced during trial showed that the driver associated with the 2nd Respondent attempted to avoid a head-on collision and that no evidence was tendered to establish negligence on the part of the 2nd Respondent. It was also submitted that no police file, Occurrence Book extract or sketch maps were produced and that no traffic charges were preferred against the driver. 2. The 2nd Respondent argued that the Appellant failed to prove any negligence against him and that the mere occurrence of an accident was insufficient to establish liability. Counsel maintained that liability, if any, lay with the owner or driver of motor vehicle registration number KDD 209S. 3. In support of those submissions, the 2nd Respondent relied on ***Eunice Wayua Munyao v Mutilu Beatrice & 3 others [2017]*** where the court cited ***Kiema Mutuku -Vs. Kenya Cargo Hauling Services Ltd 1991*** and stated:- *“****There is as yet no liability without fault in the legal system in Kenya, and a Respondent must prove some negligence against the Appellant where the claim is based on negligence.”*** 1. The 2nd Respondent further relied on ***Benter Atieno Obonyo v Anne Nganga & another [2021] eKLR*** *and* ***Sally Kibii & another v Francis Ogaro [2012] eKLR****,* citing the following passage:- *“In* ***the Kenital case (above) I held that in all adversarial legal systems like ours, a party undermines his case drastically by not calling or failing to call witnesses. The Appellant simply did not adduce any evidence before the trial court on liability. They could have called eye witnesses and/or the investigating Police Officer. Proof of negligence was material in this case and the burden of proof was upon the Appellant. She did not discharge the burden and the appellant's Counsel submission before me that ‘someone’ has to explain how the accident took place, is telling. That ‘someone’ is the Appellant who alleges negligence on the part of the Respondent.”*** 1. The 2nd Respondent also stated that: *“As can be deduced from all the cited authorities the key issue is to prove. It is not enough to allege as done by the appellant herein and expect the court to agree with you. As expected under Section 107 and 108 of the Evidence Act, the burden squarely is upon the appellant.”* 2. Counsel submitted that none of the witnesses blamed him and that even the Appellant admitted that she did not know who was responsible for the accident. He argued that the Appellant failed to prove negligence against the 2nd Respondent. 3. The 2nd Respondent further relied on ***Robert Muriithi Njeru v Diocese of Embu Salesians of Don Bosco [2015] eKLR*** wherein the following passage was cited:- ***“The appellant had a duty to prove his case on the balance of probability as required by Section 107 of the Evidence Act that whoever alleges the existence of a fact has a duty to prove it. It was argued that the fact that a motorist was involved in an accident was not proof of negligence on his part....I find no merit in this appeal.”*** 1. The 2nd Respondent also relied on ***Michael Wanjohi Mathenge V Lydiah Nyaguthii Agatha & Another [2007] eKLR***, citing the following:- *“......****I would respond to those grounds by saying that the burden of proving the case was upon the Plaintiff. The Defendants on their part could have, if they so wish, kept quiet without presenting their defence. The burden therefore did not shift to the Defendants to prove their defence. I have examined the evidence presented in the lower court and I am of the view that the Plaintiff/Appellant failed to prove his case on a balance of probability. In that regard I find that I am in agreement with the lower court's judgment and accordingly I do hereby dismiss the Appellant's appeal.”*** 1. The 2nd Respondent further relied on ***Amani Kazungu Karema v Jackmash Auto Ltd & another [2021] eKLR*** and cited the following:- *“****A case involving contributory negligence calls upon the trial court to question of what the other party ought or ought not to have done under the circumstances in that particular accident to apportion negligence. Two things must concur to support a finding on contributory negligence, an obstruction on the road being used by the parties and the default of each of the drivers, and their want of ordinary care to avoid it.”*** 1. Counsel urged the court to uphold the finding that the 2nd Respondent was not liable for the accident. 2. On **quantum,** the 2nd Respondent submitted that the discharge summary only confirmed fractures of the femur and humerus and did not indicate the additional injuries contained in the medical report. It was argued that no X-ray reports were produced to support those additional injuries and that the medical report should therefore be disregarded. Counsel further submitted that a subsequent medical report confirmed fractures of the left humerus and femur and a forehead cut wound, and noted that the Plaintiff was generally in fair condition although corrective surgery estimated at Kshs.120,000/= might be required. The court was urged to uphold the trial court’s award of Kshs.400,000/= as fair and reasonable. 3. On future medical expenses, the 2nd Respondent submitted that such expenses constitute special damages which must be specifically pleaded and strictly proved. Reliance was placed on ***Samuel Kipkemoi Kirui v Ibrahim Shero Husein & 2 others [2016] eKLR****,* and it was argued that although future medical expenses were mentioned in the plaint, no sufficient evidence was tendered to prove the need for future treatment. The claim was therefore contended to be unsustainable. 4. Regarding costs, the 2nd Respondent submitted that costs follow the event pursuant to Section 27(1) of the Civil Procedure Act and urged the court to dismiss both the appeal and the cross-appeal with costs to the 2nd Respondent. 5. The court has considered the record of appeal, the cross appeal, the pleadings and original record of the proceedings as well as the submissions by the respective parties. This being the first appeal, it is well settled that the role of this Court is to revisit the evidence on record, evaluate it and reach its own conclusion in the matter. (See the case of ***Selle & Ano. vs. Associated Motor Boat Co. Ltd (1968) EA 123****).* This court nevertheless appreciates that an appellate Court will not ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or the Court is shown demonstrably to have acted on wrong principles in reaching the findings. This was the holding in ***Mwanasokoni – versus- Kenya Bus Service Ltd. (1982-88) 1 KAR 278*** *and* ***Kiruga –versus- Kiruga & Another (1988) KLR 348*).** 6. Upon the review and appreciation of pleadings filed in the Appeal, the cross appeal and the rival submissions, this court will address the appeal and cross appeal concurrently. It is the court’s view that the appeal turns on two issues namely, **whether the finding of the trial court on liability was justified and whether the award of damages was justified.** 7. On the first issue of **liability**,the trial court apportioned 100% liability on the 1st Respondent. It held that the 1st Respondent was liable as its motor vehicle was being driven carelessly and recklessly at the material date of the accident. As a result, the motor vehicle registration number KDD 177Q lost control, veered off its lane and collided with the vehicle KDD 209S in which the Appellant was travelling in. 8. In the impugned judgment, the trial court found that the 1st Defendant was vicariously liable for causing the accident on account that it was the registered owner of the subject motor vehicle. On this issue, the 1st Respondent challenged the trial court’s holding submitting that it was erroneous for fully apportioning liability on it despite the evidence showing that it had no possession nor control of the said motor vehicle at the time of the accident. Further, the 1st Respondent contended that it had sold the subject motor vehicle to the 2nd Respondent prior to the accident and the loan facility previously tied to the vehicle had been fully discharged. 9. In its cross appeal, the 1st Respondent faulted the trial court for ignoring the evidence of DW1, which was corroborated by documentary evidence, showing that the motor vehicle had been sold and that the loan facility had been fully cleared prior to the accident*.* It further pointed out that the trial court erred by failing to appreciate that liability in negligence and vicarious liability is founded on control and possession, and not mere historical ownership. 10. On the other hand, the Appellant affirmed the trial court’s decision on liability but faulted it on quantum. She stated that the court made a correct finding as the legal ownership of the subject motor vehicle remained with the 1st Respondent. 11. Section 8 of the Traffic 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”.*** 12. The foregoing provision indicates that on *prima facie* basis, the person registered on the log book is presumed to be the owner of the subject motor vehicle. However, courts have consistently held that the entry in the log book is not conclusive proof of ownership where evidence can be adduced to show that the *de facto*, beneficial or possessory owner is a person other than the one named in the register. 13. In ***Bernard Muia Kilovoo v. Kenya Fresh Produce Exporters [2020] eKLR,*** it was stated as follows:- *“****41. The Court of Appeal in this binding decision is clearly stating: (i) That the presumption that the person registered as the 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.”*** 1. In this case, as per the proceedings, the 1st Respondent/ Cross Appellant had adduced evidence in the form a sale agreement dated 13/8/2021 between the 1st Respondent and the 2nd Respondent. 2. The law that governs sale of motor vehicles is the Sale of Goods Act Cap. 31. Section 19(1) and (2) of the Act provides that: – *“i)* ***Where there is a contract for the sale of specific or ascertained goods, the property in them is transferred to the buyer at such a time as the parties to the contract intend it to be transferred.*** ***ii) For the purposes of ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case.”*** 1. Further, in ***Joel Muga Opija V. East African Sea Food Limited (2013) KECA 181 [KLR],*** the Court of Appeal held that:- *“****where a registered owner has sold a vehicle and*** ***divested himself of possession and control, he cannot be held vicariously liable for the negligence of the driver. The failure to effect transfer of ownership in the registration book does not operate to maintain a state of vicarious liability that has, in fact ceased to*** ***exist****”.* 1. It is this Court’s view therefore, that the 1st Respondent adduced substantial evidence on a balance of probabilities to prove that it had divested itself of the ownership of the subject motor vehicle to the 2nd Respondent, Erick Okomo Okuku. It is in the evidence of DW1 that the motor vehicle had been sold to the 2nd Respondent. He confirmed that the 2nd Respondent had cleared all the loan and the motor vehicle had been transferred to him, and who in turn became the beneficial owner with custody, possession and control of the subject motor vehicle as at the date of the accident. 2. Accordingly, this Court finds merit in the cross appeal on the ground that the trial court failed to take into account evidence that the 1st Respondent did not have control nor possession of the subject motor vehicle as at the date of the accident. This Court therefore overturns the trial court’s finding on liability against the 1st Respondent. The cross appeal succeeds on this limb. 3. On the other hand, the 2nd Respondent, Eric Okomo Akuku, did not call any witnesses at the trial court. However, he filed his written submissions dated 20th May, 2026 faulting the trial court on liability and quantum. 1. He faulted the trial court for shifting the burden of proof to him. He argued that the same rests upon the Appellant pursuant to Section 107(1) of the Evidence Act. He argued that the Appellant failed to prove negligence against him on a balance of probabilities. 1. Under section 107 of the Evidence Act, the burden of proof lies on the one who alleges. The question therefore is whether the Appellant herein discharged the burden of proof that the 2nd Respondent was wholly liable in negligence for the occurrence of the accident wherein the Appellant was injured. 2. It is not in dispute that the accident occurred between motor vehicles KDD 209S and KDD 177Q and the Appellant was injured as corroborated by the medical evidence on record. Examining the evidence before the trial court, PW1, the Appellant, testified that she was a passenger in the motor vehicle registration number KDD 209S and that she lost consciousness during the accident and only regained consciousness in hospital. She could not explain how the accident occurred or attribute blame to any party. 3. The position as to proof in civil cases was reiterated in the case of ***Kirugi & Anor vs Kabiya & 3 Others [1987] KLR 347*** where the Court of Appeal stated that the burden was always on the plaintiff to prove his case on the balance of probabilities, and that such burden was not lessened even if the case was heard by way of formal proof. 1. Further, in ***Ephantus Mwangi and Another vs. Duncan Mwangi Civil Appeal No. 77 of 1982 [1982-1988] 1KAR 278*** the Court of Appeal held that:- *“****A member of an appellate court is not bound to accept the learned Judge’s findings of fact if it appears either that (a) he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or (b) if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”*** 1. From the record, the P3 form and as also pointed out by the trial court it its judgment, did not indicate nor inform the court on how the accident occurred. There is no report from the investigating officer and therefore remains unclear who was to blame for the accident. What is apparent from the record of proceedings is that the trial court relied mainly on the testimony of PW1, the Appellant herein on the issue of liability. 2. It is therefore difficult to find the 2nd Respondent liable for the accident in the absence of the sketch map and a witness who could have testified otherwise. On a balance of probability, I am unable to fault the Respondents. The finding on liability therefore reflects the evidence and testimonies on record as presented by the parties before the trial court. 3. This court finds that the trial court fell into error by finding that the Respondents were liable for the accident based on the evidence of PW1 alone as the police abstract and other witnesses could not sufficiently lay the entire blame on the Respondents. 4. Having failed to prove liability, the Court need not delve into issues of quantum and assessment of damages. 5. The appeal therefore fails and it is hereby dismissed. The suit by the Plaintiff in the trial Court was not proved on a balance of probabilities. The cross appeal is merited and succeeds. The Court therefore, makes the following orders:- 6. ***Judgment of the trial Court dated 26/03/2025 is hereby set aside. It is substituted with a decree dismissing the Appeal with costs to the Respondents.*** 7. ***The Cross- Appeal succeeds. The claim against the 1st Respondent is hereby dismissed with costs against the Appellant.*** 8. It is so ordered. **DELIVERED VIRTUALLY, DATED** and **SIGNED** at **NAIROBI** this **16th** day of **JULY, 2026.** ……………………………………. **W.N. MOLONKO** **JUDGE** ***In the presence of*** 1. N/A for the Appellant. 2. Ogambo for the 1st Respondent. 3. N/A for the 2nd Respondent. 4. Susan Nzioka – Court Assistant