https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9433

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **[MILIMANI LAW COURTS]** **THE CIVIL APPELLATE DIVISION** ***(Coram: A.C. Mrima, J.)*** **CIVIL APPEAL.NO. E581 OF 2025** ***-between-*** **AYAN AUTOMOBILES LIMITED ……………………………………….…APPELLANT** ***-versus-*** **CATHERINE SYONGUNU NGESU………………………..…….....1st RESPONDENT** **GERALD MUCHOKI………………………………………..…………2nd RESPONDENT** **HIRAM MACHARIA MURIGE………………………………….......3rd RESPONDENT** ***(Being an appeal from the Judgment of Hon. Muthoni Njagi (Principal Magistrate) delivered on 29th May,2025 in Nairobi MCCC No. E4242 OF 2022)*** **JUDGMENT** **Introduction and Background:** 1. *Catherine Syongunu Ngesu*, the 1st Respondent herein, was a passenger aboard motor vehicle registration number *KDA 311X* (hereinafter referred to as ‘***the Motor vehicle’***) which was being driven by *Gerald Muchoki*, the 2nd Respondent herein**,** when it lost control along Mombasa Road, Nairobi and rolled, causing the 1st Respondent serious bodily injuries. That was on the 7th June 2022. 2. The Motor vehicle was registered in the name of *Ayan Automobiles Limited*, the Appellant herein, who had entered into a Sale Agreement with *Hiram Macharia Murige,* the 3rd Respondent herein, on 3rd December 2020. Pursuant to the agreement, Hiram Macharia Murige had the physical and actual possession of the motor vehicle thereafter. 3. As a result of this accident, the 1st Respondent sued the Appellant and the 2nd Respondent *vide* *Nairobi [****Milimani****] Chief Magistrates Civil Suit number E4242 of 2022*, [hereinafter referred to as ‘***the suit’***] and sought for judgment in the following terms: - 4. *General damages for pain, suffering and loss of amenities;* 5. *Special damages in the sum of Kshs. 20,630/=;* 6. *Costs of this suit; and* 7. *Interest on (i), (ii) and (iii) above.* 8. Through a Statement of Defence dated 13th February 2023, the Appellant denied liability and posited that it had sold and surrendered possession of the motor vehicle to the 3rd Respondent as forestated. For this reason, the Appellant urged the trial Curt to strike out the suit for failing to raise a cause of action against it. The 3rd Respondent was subsequently enjoined in the suit as a third party. 9. The 2nd Respondent entered appearance but did not file any defence. 10. The matter proceeded by way of *viva voce* evidence. Ther 1st Respondent testified and called 2 witnesses; a Medical Doctor and a traffic police officer from Embakasi Police Station. The Appellant called its representative who also testified and the 3rd Respondent [third party] did not take part in the hearing of the suit. Thereafter, the trial Court entered judgment on 29th May 2024 in favour of the 1st Respondent as against the Appellant and the 2nd Respondent in the following terms: - 11. *Liability- 100% against the Appellant and the 2nd Respondent;* 12. *General Damages- Kshs.300,000/=;* 13. *Special Damages- Kshs.20,630/=; and* 14. *costs of the suit with interest at court rates from the date of the judgment.* 15. It was that judgment that prompted the instant appeal and a cross-appeal; which were both canvassed together, and by way of written submissions. **The Appeal:** 1. Aggrieved by this judgment, the Appellant filed the instant appeal through the Memorandum of Appeal dated 30th May 2025 on the following grounds: - 2. *The Learned Magistrate erred in law and in fact in finding the Appellant to be the owner of the accident motor vehicle on the ground that the Appellant was the registered owner of the same, without considering the compelling evidence that possessory ownership and beneficial ownership had passed to the 3rd Respondent.* 3. *The Learned Magistrate erred in law and in fact in failing to consider the Appellant submissions which were filed on the 12th day of May 2025 whereas the matter was coming up to confirm filing of submissions on the 14th day of May 2025.* 4. *The Learned Magistrate erred in law and in fact in failing to consider the Appellant submissions which were confirmed to have been filed and on the record on the 14th day of May 2025 before all the parties present proceeded to take a date for judgment.* 5. *The Learned Magistrate erred in law and in fact in stating that the Appellant was served with a judgment notice and affidavit of service filed when the Appellant had been present on the date of taking the judgment and had confirmed that its submissions were on record.* 6. *The Learned Magistrate erred in law and in fact in failing to consider the Appellant submissions which were confirmed to have been filed without giving a reason.* 7. *The Learned Magistrate erred in law and in fact in disregarding the proof that the subject motor vehicle had been sold to the 3rd Respondent, and that the Appellant was no longer in ownership and control of the same as at the time of the accident in question.* 8. *The Learned Magistrate erred in law and in fact in disregarding the compelling evidence that the said 3rd Respondent was to indemnify the Appellant in case of any liability or claim with respect to Motor Vehicle Registration Number KDA 311X whilst the same was in the 3rd Respondent's possession.* 9. *The Learned Magistrate erred in law and in fact in failing to rely upon the Sale Agreement of Motor Vehicle dated 3rd December 2020 when in fact it was executed and remained uncontroverted.* 10. *The Learned Magistrate erred in law and in fact in failing to consider that it is trite law that despite a person being the registered owner of a motor vehicle, there may exist beneficial and possessory ownership of the same which may be more relevant that the registration thereof.* 11. *The Learned Magistrate erred in law and in fact in failing to consider that it was the 3rd Respondent who was the insured of the subject motor vehicle as at the time of the accident in question.* 12. *The Learned Magistrate erred in law and in fact in failing to consider that other than the Motor Vehicle Copy of Search, a Police Abstract can by dint of Section 8 of the Traffic Act, provide sufficient proof of ownership of the accident motor vehicle.* 13. *The Learned Magistrate erred in law and in fact in failing to consider that the 1st Respondent had the burden of establishing employer-employee kind of relationship between the Appellant and the driver of the accident motor vehicle, of which the 1st Respondent failed to discharge.* 14. *The Learned Magistrate erred in law and in fact in finding the Appellant vicariously liable for the conduct of the 2nd Respondent when the Respondent adduced no evidence showing the 2nd Respondent was acting under the control of the Appellant.* 15. *The Learned Magistrate erred in law and in fact in holding the Appellant 100% liable for an accident wherein it had sold the accident motor vehicle to the 3rd Respondent.* 16. *The Learned Magistrate erred in law and in fact in failing to consider that the main concern of the court is to do justice to the parties.* 17. *The Learned Magistrate erred in law and in fact in disregarding the evidence that in civil matters liability trickles down to who actually caused an accident.* 18. *The Learned Magistrate erred in law and in fact in disregarding the proof that nothing impeded that Court's right to exercise its discretion in this matter.* 19. *The Learned magistrate erred in law and in fact by disregarding all the evidence presented by the Appellant in support of its position that it had sold the subject motor vehicle as at the time of the accident in question.* 20. *The Learned Magistrate erred in law and in fact in making a judgment that is unfair, biased, unjust and an absurdity to the norms of equity and justice.* 21. It was upon these grounds that the Appellant urged this Court to set aside the trial Court’s judgment. **The Cross-Appeal:** 1. The cross-appeal was filed by the 2nd Respondent. It was dated 4th July 2025 and raised the following grounds: - 2. *The Learned magistrate erred in fact and in law in arriving at a quantum that was too high in the circumstances.* 3. *The learned magistrate erred and misdirected herself when she failed to consider the applicants submissions on both points of law and facts.* 4. *That the learned magistrate's decision was unjust, against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.* 5. *That the learned trial magistrate erred in law and fact by failing to judiciously analyze the evidence on record and the appellants submissions and authorities thereby arriving at a finding on liability which finding was unfair and unjust to the appellants.* 6. *The learned trial magistrate failed to consider conventional awards made in respect of cases of similar injuries thereby arriving at an excessive award.* 7. *The Learned magistrate erred in fact and in law in failing to appreciate the nature of injuries sustained by the respondent and in so doing arrived at an erroneous assessment of damages.* 8. The 2nd Respondent urged this Court to set aside the judgment, and that he be granted costs of the appeal. 9. The appeal was disposed of by way of written submissions. Whereas the Appellant filed its submissions, the 2nd Respondent, who was the cross appellant, did not file any submissions and the 3rd Respondent did not participate in the hearing of this appeal. This Court has carefully perused the written submissions on record and the decisions referred to therein and has understood the gist of the appeals. The content of the arguments and submissions shall be ingrained in the discussion hereunder. **Analysis and Determination:** 1. The bounds of this Court as a first appellate Court are well defined. It is to re-evaluate and reassess the evidence and come up with its independent findings as so stated in ***Abok James Odera T/A A.J Odera & Associates -vs- John Patrick Machira T/A Machira & Co. Advocates***[2013] KECA 208 (KLR) by the Court of Appeal. [See also ***Selle and Another vs Associated Motor Boat Company Ltd & Others*** [1968] 1 E.A. 123]. 2. Having carefully perused the record, parties’ submissions and the decisions referred thereto, the two issues that stand out for this Court’s determination are whether: - 3. The trial Court erred in its finding on liability; and 4. Whether the finding in damages was excessive. 5. This Court will now determine the above issues in *seriatim.* **Liability:** 1. On this issue, the Appellant denied liability on the basis that as at the time of the accident, it had sold and surrendered the motor vehicle to the 3rd Respondent way back on the 3rd December 2020. It produced copies of the Sale Agreement, the Deed of Indemnity and Consent and an Affidavit as evidence. 2. Relying on a plethora of cases, the Appellant argued that Courts have severally held that while a logbook or abstract from the Registrar is *prima facie* evidence of ownership, that is not conclusive evidence since the vehicle may be physically vested on another person. The Appellant contended that as at the time of the accident, the motor vehicle was owned and in the possession of the 3rd Respondent who had in fact insured the motor vehicle with *Directline Insurance Company Limited.* They argued that the police abstract confirmed that the 3rd Respondent was in total control of the motor vehicle. 3. Further, they submitted that the 3rd Respondent was the beneficial owner of the motor vehicle whose log book they retained as security for the balance of the purchase price. For these reasons, they denied liability and blamed the 3rd Respondent. 4. The 1st Respondent, on the other hand, argued that the purported sale agreement between the Appellant and the 3rd Respondent was not within their knowledge and as such did not know that the motor vehicle had passed to a 3rd Respondent. She contended that it was incumbent upon the Appellant to rebut the presumption that it was not the owner of the motor vehicle. Further, she submitted that the Appellant sought the trial Court for leave to enter interlocutory judgment against the 3rd Respondent, which leave was granted but the Appellant failed to file the request for endorsement by the trial Court and as a consequence, it was assumed that the Appellant had abandoned their quest to join the supposed 3rd party. 5. It was still the 1st Respondent’s argument that the Appellant has the option of satisfying the decree and thereafter apply for judgment against the 3rd Respondent or apply for judgment to the extent of the 3rd Party notice to be entered against the 3rd Respondent. She also contended that the Appellant failed to effect proper service upon the 3rd Respondent to warrant the Court to enter an interlocutory judgment. In the end, she emphasized that the copy of records from the Registrar of Motor Vehicles was adequate proof of ownership and, therefore, the Appellant’s failure to join the 3rd Respondent as a 3rd Party to the suit relinquished possession of the motor vehicle to the 3rd Respondent. For these reasons, she urged this Court to dismiss the appeal with costs. 6. From the record, the Appellant applied to, and was granted leave to, enjoin the 3rd Respondent as a third party in the suit. On 21st November 2024, the suit came up for a mention to ascertain service of the third-party notice and for further directions. It transpired that the third party had been duly served and had not entered any appearance. When the suit came up on 28th November 2024, Counsel sought confirmation whether an interlocutory judgment had been entered against the third party. A hearing date was also sought for and indeed the suit was fixed for hearing. 7. With utmost respect, the impugned judgment, however, did not at all attest to the third party who had been served, but failed to enter appearance. The focus seems to have only been on the Appellant and the 2nd Respondent. *Order 1 Rule 17* of the *Civil Procedure Rules* provide as follows: - ***17. Default of appearance by third party [Order 1, rule 17]*** *If a person not a party to the suit who is served as mentioned in rule 15 (hereinafter called the “third party”) desires to dispute the plaintiff’s claim in the suit as against the defendant on whose behalf the notice has been given, or his own liability to the defendant, the third party must enter an appearance in the suit on or before the day specified in the notice; and in default of his so doing he shall be deemed to admit the validity of the decree obtained against such defendant, whether obtained by consent or otherwise, and his own liability to contribute or indemnify, as the case may be, to the extent claimed in the third party notice:* *Provided that a person so served and failing to enter an appearance within the period fixed in the notice may apply to the Court for leave to enter an appearance, and for good cause such leave may be given upon such terms, if any, as the court shall think fit.* 1. Having declined to enter appearance in the suit after service, the 3rd Respondent [as a third party] automatically, and without more, assumed liability of the Plaintiff’s claim as claimed in the third-party notice. Since the Appellant claimed full liability or contribution on the part of the third party to whom it had sold the motor vehicle to, then it was incumbent upon the Court to deal with the aspect of the liability between the Appellant and the third party in the judgment. That, did not happen. 2. Despite the foregoing, there was evidence to confirm that indeed the Appellant had sold the motor vehicle to the 3rd Respondent long before the accident occurred although the official records still indicated the Appellant as the registered owner. This position brings to the fore the dichotomy in ownership of motor vehicles. On the one part is the legal ownership and on the other is beneficial/actual ownership. As said, there is no dispute that the Appellant is the legal registered owner of the motor vehicle. 3. That state of affairs, that is, the fact that a person is the registered legal owner of a motor vehicle does not automatically confer upon such person civil liability. The Court of Appeal in ***Securicor Kenya Limited -vs- Kyumba Holdings Limited*** [2005] 1KLR 748 discussed forms of ownership that may be relevant for attaching civil liability. It observed as follows: - *In finding for the respondent the trial Judge found as a fact that KWJ 816 had been sold by the appellant through tender for kshs.25,000/- “only as shell” without the engine. G.M. Thangwa won the tender and paid the sum. Though he was given a duly signed transfer form and a logbook, the transfer in his favour was never registered. However, what is known is that the motor vehicle was eventually converted into a matatu and was being used as such at the time of the accident. 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 is the appellant.* *That section reads as follows: -* *“The person whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle.”* *We think that the appellant had, by the evidence it led, proved on a balance of probability, that it was not the owner of KWJ 816 at the time the accident occurred since it had sold it. Our holding finds support in the decision in OSAPIL v. 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….* 1. In ***Nancy Ayemba -vs- Abdi Ali*** (2010) eKLR, the High Court discussed the forms of ownership of vehicles 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. 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 balance of probabilities, that 1st defendant was one of the owners of the matatu in question.*** 1. Further, in ***Benard Muia Kilovoo v Kenya Fresh Produce Exporters*** [2020] eKLR, the Court had the following to say: - *… 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.* 1. The Supreme Court of India decision in ***Naveen Kumar -vs- Vijay Kumar & Others*** offers more insight on the various modes of ownership. It interpreted the meaning of the term ‘owner’ pursuant to Section 2(30) of the Motor Vehicles Act 1988 by observing thus: - *…. Section 2(30) of the Act stated that is it the person in whose name the motor vehicle stands registered would be treated as the ‘owner’. However, where a person is a minor, the guardian of the minor would be treated as the owner. Where a motor vehicle is subject to an agreement of hire purchase, lease or hypothecation, the person in whose possession of the vehicle under that agreement is treated as the owner.* 1. The foregoing interpretation of section 2(30) of the Indian Motor Vehicles Act applies *mutatis mutandis* to ***Section 8*** of the **Traffic Act**, Cap. 403 of the laws of Kenya, which states as follows: - ***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. Deriving from the foregoing, and with tremendous respect, the trial Court fell into error by failing to appreciate the other means of ownership of motor vehicles other than the formal registration under Section 8 of the Traffic Act. 2. The Appellant was, therefore, erroneously found liable for the accident for two reasons. The first reason being that liability attached to the 3rd Respondent who was a third party in the suit and who failed to enter appearance upon service of the third-party notice on him. The second reason is that there is evidence that the Appellant had sold the motor vehicle to the 3rd Respondent way before the accident occurred. As such, the 3rd Respondent was the owner of the motor vehicle. 3. Further to the foregoing, the 2nd Respondent contested the liability as apportioned by the trial Court. The 2nd Respondent was the driver of the motor vehicle. Since the 1st Respondent was a passenger in the motor vehicle and no evidence was adduced as to the manner in which she may have contributed to the accident, then the apportionment ought not be disturbed. 4. The upshot is thatthe appeal on liability succeeds to the extent that the Appellant is not liable for the accident, but the 2nd and 3rd Respondents are wholly liable, jointly and severally, being the respective driver and the owner of the motor vehicle. **Quantum:** 1. An assessment of damages is generally a difficult task. A Court is supposed to give a reasonable award which is neither extravagant nor oppressive while being guided by factors including previous awards for similar injuries and the principles as developed by the Courts. However, what constitutes a reasonable award is an exercise of discretion and will depend on the peculiar facts of each case and an appellate Court must be slow to interfere with such an exercise of discretion. (See ***Butler vs. Butler*** (1982) KLR 277.) 2. The Court of Appeal in ***Kemfro Africa Ltd v A. M. Lubia & Another*** (1988)1 KAR 727 discussed the principles to be observed when an appellate Court is dealing with an appeal on assessment of damages. The Court expressed itself clearly thus: - ***The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the Judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.*** 1. This position was restated by the Court of Appeal in ***Arrow Car Limited -vs- Bimomo & 2 others*** (2004) 2 KLR 101 and also in ***Denshire Muteti Wambua -vs- Kenya Power & Lighting Co. Ltd*** (2013) eKLR. 2. In this matter, save the 1st Respondent, none of the rest of the parties submitted on this head. The 1st Respondent urged this Court to uphold the trial Court’s assessment. Having considered the manner in which the trial Court arrived at the award, this Court is satisfied that the trial Court made an impressive jurisprudential tour and referred to several relevant decisions. To that end, there is no reason to disturb the award. The appeal on quantum fails thereby wholly dismissing the cross-appeal. **Disposition:** 1. As I come to the end of this judgment, I wish to apologize to the parties for the late delivery of this decision. The delay was occasioned by my engagement at the Judicial Service Commission where I serve as a Commissioner given that the Commission has been running interviews since December 2025 to date. Once again, galore apologies. 2. Resulting from the above discussions, the following final orders hereby issue: - **[a] The Cross-Appeal is wholly dismissed.** **[b] The appeal by the Appellant wholly succeeds.** **[c] The judgment on liability and quantum against the Appellant herein, Ayan Automobiles Limited, in *Nairobi [Milimani] Chief Magistrates Civil Suit number E4242 of 2022* is hereby set aside *in toto*. The case against the Appellant in the suit stands dismissed with costs to be jointly and severally borne by Gerald Muchoki and Hiram Macharia Murige.** **[d] For clarity, judgment in Nairobi [Milimani] Chief Magistrates Civil Suit number E4242 of 2022 is hereby entered for the 1st Respondent, Catherine Syongunu Ngesu, jointly and severally against Gerald Muchoki and Hiram Macharia Murige as follows: -** 1. **Liability - 100% against Gerald Muchoki and Hiram Macharia Murige.** 2. **General Damages for pain, suffering and loss of amenities - Kshs. 300,000/=;** 3. **Special Damages *-* Kshs.20,630/=; and,** 4. **Interest on (ii) above from the date of judgment in the suit whereas interest in (iii) above from the date of filing the suit.** 5. **The costs of the suit.** **[f] Costs of this appeal for the Appellant and the 1st Respondent shall be borne by Gerald Muchoki and Hiram Macharia Murige. The 1st Respondent shall also have costs of the cross-appeal to be borne by the said Gerald Muchoki and Hiram Macharia Murige.** Orders accordingly. **DELIVERED, DATED** and **SIGNED** at **NAIROBI** this **23rd** day of **June, 2026.** **A. C. MRIMA** **JUDGE** **Judgment virtually delivered in the presence of:** **Miss Mwagi**,Learned Counsel forthe Appellant. **Miss Owino,** Learned Counsel for the 1st Respondent. No appearance for the 2nd and 3rd Respondents. **Michael/Amina –** Court Assistants.