https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10719

Bhavin Motors Ltd v Omolo & another (Civil Appeal E1101 of 2023) [2026] KEHC 10719 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 10719 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Appeal E1101 of 2023 BW Murunga, J July 16, 2026 Between Bhavin Motors Limited Appellant and David Obunga Omolo Respondent and Timothy Kinoti Kaburu Third party (Being an appeal from the judgment of Hon. Wendy K. Micheni, Chief Magistrate, delivered on 22nd September 2023 in Milimani Commercial Magistrate’s Court Civil Suit No. 323 of 2012) Judgment A. Introduction And Background 1.This is an appeal from the judgment of the Chief Magistrate’s Court at Milimani Commercial Courts (Hon. Wendy K. Micheni, CM) delivered on 22nd September 2023 in Milimani CMCC No. 323 of 2012, David Obunga Omolo v Bhavin Motors Limited & Timothy Kinoti Kaburu (3rd Party). 2.The Respondent’s claim before the trial court was founded on negligence. He pleaded that on 16th March 2010, while lawfully walking on the pavement within the compound of the Nairobi Women's Hospital after completing his shift, motor vehicle registration number KBA 793Y, a Toyota Corolla station wagon, was so negligently, recklessly and/or carelessly driven at high speed by the authorised driver, servant and/or agent of the appellant that it lost control, veered off its lane and struck him, causing serious bodily injury. He sought general and special damages. 3.The Appellant entered a statement of defence dated 22nd June 2017 denying liability. Its principal defence was that it was no longer the owner of the suit motor vehicle at the material time, having sold it in the year 2008 to one Timothy Kinoti Kaburu, whom it joined to the suit as 3rd Party by third-party notice. The 3rd Party, though served, at no point entered appearance or filed any defence or response. 4.The suit proceeded to full trial. The Respondent testified and called PC Timbe Chemngu, the police officer who produced the police abstract and the occurrence book extract implicating KBA 793Y in the accident, and Dr. Cyprianus Okoth Okere, who examined the Respondent and produced a medical report dated 19th March 2021. 5.The Appellant’s sole witness was its director, who adopted a witness statement dated 28th April 2023 and produced a bundle of documents dated 13th October 2017, chief among them an unstamped transfer of ownership form dated 1st February 2008 executed only by the Appellant, and a letter dated 3rd August 2011 addressed to the Commissioner of Motor Vehicle Registration. 6.By its judgment, the trial court found that the Appellant was, as at the date of the accident, the registered and beneficial owner of motor vehicle KBA 793Y; held the Appellant 100% liable for the accident; declined to enter judgment in the Appellant’s favour against the 3rd Party; and awarded the respondent general damages of Kshs. 700,000/=, with interest and costs, while disallowing the claim for special damages for want of proof. 7.Aggrieved, the Appellant lodged a Memorandum of Appeal dated 19th October 2023 raising nine grounds, which may conveniently be grouped under four heads:i.that the trial court erred in finding the appellant to be the owner of the suit motor vehicle and, on that basis, liable for the accident;ii.that it erred in its treatment of the 3rd Party;iii.that the general damages awarded were inordinately excessive; andiv.that the order as to costs and interest was improperly made. The Appellant's Case 8.Learned counsel for the Appellant submitted that, as the first appellate court, this Court is enjoined to reconsider and re-evaluate the evidence and reach its own conclusions, relying on Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123. It was urged that, on a proper re-evaluation, the evidence at trial did not support a finding that the appellant remained the owner of, or in possession of, the suit vehicle at the material time. 9.On ownership, the Appellant relied on the transfer of ownership form dated 1st February 2008 and the letter dated 3rd August 2011 to the Commissioner of Motor Vehicle Registration, and on Securicor Kenya Ltd v Kyumba Holdings Ltd [2005] eKLR, for the proposition that registration under Section 8 of the Traffic Act is merely prima facie, and rebuttable, evidence of ownership. It was submitted that there was accordingly no causal link between the appellant and the accident, relying on Statpack Industries Ltd v James Mbithi Munyao, Nairobi HCCA No. 152 of 2003, and that the trial court's contrary finding could not stand, applying Mwangi v Wambugu [1984] KLR 453. 10.On the 3rd Party, the Appellant contended that the trial court fell into self-contradiction by invoking Order 1 Rule 22 of the Civil Procedure Rules, 2010 to fault the Appellant for not proceeding by chamber summons for directions, when it was common ground that the 3rd Party never entered appearance at all. It was submitted that Order 1 Rule 21(1) was the correct provision, and that the trial court ought, following the full trial, to have entered judgment for the appellant against the defaulting 3rd Party. 11.On quantum, the Appellant submitted that Kshs. 700,000/= for a hairline fracture, a fracture of the radial head and soft tissue injury, assessed at only 3% permanent incapacity, was inordinately excessive, relying on Wakim Sodas Limited v Sammy Aritos [2017] eKLR and Daniel Otieno Owino & Another v Elizabeth Atieno Owuor [2020] eKLR, both involving considerably more extensive injuries yet attracting awards of only Kshs. 400,000/=, and urged an award in the region of Kshs. 200,000/=. 12.Finally, it was submitted that costs ought not to have been awarded against the appellant, relying on Farah Awad Gollet v CMC Motor Group Limited (2018) eKLR, and that the appeal be allowed in its entirety, alternatively that judgment be entered against the 3rd Party. The Respondent's Case 13.Learned counsel for the Respondent supported the trial court’s judgment, relying on Mbae (Suing as the Legal Representative of the Estate of Koome Mbae) v Kinya, Civil Appeal E018 of 2022 [2024] KEHC 2285 (KLR), on the circumscribed role of a first appellate court, and submitted that this Court should not lightly disturb findings of fact reached after the trial court had the advantage of hearing the witnesses. 14.On ownership, the Respondent relied on Section 8 of the Traffic Act and on an official search dated 7th May 2010, conducted seven weeks after the accident, confirming the Appellant as registered owner. 15.It was submitted that the Appellant’s evidence of a prior sale was undermined by the fact that the transfer form was signed only by the appellant and never stamped, was unaccompanied by any sale agreement, and that the letter to the Commissioner, written seventeen months after the accident and after the 2010 search, spoke of a sale in terms more consistent with a recent transaction, contrary to the fourteen-day registration requirement in Section 9(1) of the Traffic Act. 16.On liability, the respondent relied on Chepnyangoi & Another v Mwangi, Civil Appeal E067 of 2023 [2024] KEHC 11020 (KLR), and pointed out that the 3rd Party, despite service, never came forward to confirm the alleged 2008 purchase. 17.On quantum, the respondent relied on John Mangi Kiiru v Salome Njeri Mwangi [2019] eKLR, in which an award of Kshs. 450,000/= for two metatarsal fractures and soft tissue injury was left undisturbed on appeal, and on Kadima v Omumu, Civil Appeal 50 of 2023 [2024] KEHC 7681 (KLR). 18.On costs, reliance was placed on Section 27 of the Civil Procedure Act and on Universities Academic Staff Union, Egerton University Branch/Chapter v Egerton University & 2 Others; Universities Academic Staff Union (Interested Party), Cause E024 of 2023 [2024] KEELRC 1864 (KLR). The respondent urged that the appeal be dismissed with costs. D. Issues For Determination 19.Having considered the record, the Memorandum of Appeal and the rival submissions, I am satisfied that the following issues arise for determination:i.What is the nature and extent of this Court’s duty as the first appellate court?ii.Whether the trial court erred in finding that the appellant was, as at 16th March 2010, the registered and legal owner of motor vehicle registration number KBA 793Y;iii.Whether the trial court erred in apportioning liability for the accident at 100% against the appellant;iv.Whether the trial court erred in its treatment of the 3rd Party under Order 1 of the Civil Procedure Rules, 2010, and in declining to enter judgment against him in the appellant's favour;v.Whether the general damages of Kshs. 700,000/= awarded were inordinately high; andvi.What order should issue as to costs. E. Analysis And Determination (a) The duty of the first appellate court 20.It is common ground that an appeal to this Court from a subordinate court is by way of retrial. In Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, the East African Court of Appeal held that“this court must reconsider the evidence, evaluate it itself and draw its own conclusion … [it] is not bound necessarily to follow the trial Judge’s finding on some point.” 21.That duty was more recently restated in Mbae (Suing as the Legal Representative of the Estate of Koome Mbae) v Kinya, Civil Appeal E018 of 2022 [2024] KEHC 2285 (KLR), where it was held that“it is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.” 22.The duty to re-evaluate is, therefore, tempered by restraint: as the Court of Appeal cautioned in Mwangi v Wambugu [1984] KLR 453,“A court of Appeal will not normally interfere with finding of fact by the trial court unless such finding is based on no evidence or a misapprehension of the evidence, or the Judge is shown demonstrably to have acted on wrong principles.”The same obtains to the High Court sitting as it is right now as an appellate Court. It is with these complementary principles, a duty to reconsider, tempered by deference to findings properly reached, that I approach the nine grounds raised. (b) Ownership of motor vehicle registration number KBA 793Y 23.I begin with ownership, since much of the appeal turns on it. Section 8 of the Traffic Act (Cap. 403) 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.” 24.It is not disputed that a search conducted on 7th May 2010 returned the Appellant as registered owner, corroborated by the log book. The presumption is therefore engaged against the appellant, and it fell to the appellant to displace it. 25.The presumption is rebuttable, and cogent evidence of an earlier, effective sale will displace it. In Securicor Kenya Ltd v Kyumba Holdings Ltd [2005] eKLR, the Court of Appeal found the presumption rebutted where the vehicle had, on the evidence, been converted into and used as a matatu by a third party long after an unregistered transfer; the appellant there had led affirmative evidence of changed use and possession from which actual loss of ownership could properly be inferred, notwithstanding that registration was never amended. The Court held, nonetheless, that“a registration card or logbook was only prima facie evidence of title … and the person whose name the vehicle was registered was presumed to be the owner thereof unless proved otherwise.” 26.The Appellant’s evidence falls well short of that standard. Three features stand out. First, the transfer of ownership form dated 1st February 2008 was executed by the Appellant alone. It bears no signature of Timothy Kinoti Kaburu, and was never presented for stamping by the Kenya Revenue Authority. An unstamped, unilateral instrument of this kind, unaccompanied by any sale agreement, proof of the price or its payment, or evidence of delivery, is, at its highest, evidence of an intention to sell; it is not proof of a completed transaction. 27.Second, the Appellant did not write to the office of Motor Vehicle Registration until 3rd August 2011, three-and-a-half years after the date on the transfer form, seventeen months after the accident, and some fifteen months after the official search had already exposed the Appellant as registered owner. That letter records that the vehicle had been sold, in language more naturally read as describing a recent event than one over three years old. 28.Third, no step was ever taken to register Timothy Kinoti Kaburu as owner within the fourteen days required by Section 9(1) of the Traffic Act, nor indeed at all. 29.I have also weighed the fact that Timothy Kinoti Kaburu, though joined and duly served, never entered appearance to assert that he had purchased and taken possession of the vehicle in 2008. Were the sale genuine, the party with the most direct interest in disowning liability might be expected to say so. His silence reinforces, rather than dispels, the doubt created by the unilateral and belated character of the Appellant’s documents. 30.I have not overlooked the Appellant’s reference, in submissions before this Court, to a letter of 9th September 2013 to the Respondent’s advocates and to a letter said to be dated 11th February 2009 from Equity Bank. As to the former, the trial record itself notes that no proof accompanied that allegation. As to the latter, I can find no trace of it among the exhibits produced at trial, and no application was made under Order 42 Rule 27 of the Civil Procedure Rules, 2010 for leave to adduce it as additional evidence on appeal. A first appellate court re-evaluates the evidence that was before the trial court; it does not receive, through the side door of submissions, material never tested at trial. I place no weight on it. 31.I am satisfied, on a balance of probabilities, that the trial court correctly found the Appellant to have remained the registered and beneficial owner of motor vehicle KBA 793Y as at 16th March 2010. The appellant did not discharge the burden of displacing the Section 8 presumption. Grounds 1 and 3 of the Memorandum of Appeal, to the extent they attack this finding, fail. (c) Liability for the accident 32.Ground 1 additionally complains that the trial court “shifted the burden of proof” onto the Appellant. Sections 107 and 108 of the Evidence Act (Cap. 80) require a party asserting a fact to prove it, and place the burden on the party who would fail if no evidence were led. 33.The Respondent discharged his primary burden by proving the accident, the involvement of KBA 793Y, and the Appellant’s registered ownership. It then fell to the Appellant, if it wished to escape liability, to adduce evidence that it was neither owner nor in control of the vehicle. That the evidential burden moved to the Appellant at that point is the ordinary consequence of a statutory presumption, not an error of law. This accords with the position taken in Kiema Mutuku v Kenya Cargo Handling Services Ltd [1991] eKLR, that“there is as yet no liability without fault in the legal system of Kenya, and a plaintiff must prove some negligence against the defendant.”The respondent did so here. 34.Ground 2, that the trial court failed to consider material facts, and Ground 5, that it failed to appreciate the Appellant’s submissions, are not borne out by the record. The trial judgment expressly summarises and engages with the Appellant’s rebuttal submissions on both ownership and quantum before rejecting them for stated reasons. A trial court’s rejection of a party’s case, after considering it, is not a failure to consider it. 35.On the merits of negligence, the Respondent led the evidence of PC Timbe Chemngu, who produced the police abstract and occurrence book extract, both attributing the accident to KBA 793Y veering off its path and striking the respondent on the pavement. No evidence was called by the Appellant to explain how the vehicle came to leave the road, nor did it ever deny knowledge of who was driving it. 36.This falls within the reasoning of the Court of Appeal in Joyce Mumbi Mugi v The Co-operative Bank of Kenya Limited & 2 Others, Civil Appeal No. 214 of 2005, that a vehicle driven normally and at reasonable speed does not simply leave its lane without cause, and that where it does,“some explanation ought to be offered by the driver of the vehicle.” 37.None was offered. An inference of negligent driving was properly open to the trial court on this unexplained departure from the road, and I do not find that inference to rest on no evidence, nor to disclose a misapprehension of the evidence, within the meaning of Mwangi v Wambugu (supra). 38.Ground 3 further complains that liability could not fairly be apportioned wholly against the appellant when it neither owned nor possessed the vehicle. Having found that the Appellant did not displace the presumption of ownership, and there being no independent evidence, of the kind that existed in Securicor Kenya Ltd v Kyumba Holdings Ltd (supra), that possession and control had in fact passed elsewhere notwithstanding retained registration, this ground cannot succeed. Ground 4, which restates the same complaint by reference to the assessment of damages “without evidence on liability,” falls with it. 39.For these reasons, the trial court’s finding of 100% liability against the Appellant is upheld, and Grounds 1, 2, 3, 4 and 5 fail. (d) The 3rd Party and Order 1 of the Civil Procedure Rules, 2010 40.Ground 8 raises a discrete point, quite independent of the finding on liability above, and to my mind is well taken. 41.It is common ground that the appellant issued a third-party notice against Timothy Kinoti Kaburu, that he was served, and that he never entered appearance nor filed any response. The trial court, having noted this default, nonetheless declined to enter judgment for the appellant against him, reasoning that the appellant ought to have proceeded under Order 1 Rule 22 of the Civil Procedure Rules, 2010 by chamber summons for directions. 42.That reasoning, with respect, cannot stand. Order 1 Rule 22 is, by its own terms, engaged only “if a third party enters an appearance pursuant to the third-party notice.” Timothy Kinoti Kaburu did not. A rule conditioned on an event that did not occur cannot be the measure of what the appellant ought to have done. 43.Where a third party defaults in entering appearance, the applicable machinery lies elsewhere in Order 1. Rule 17 (Default of appearance by third party) provides that a third party who fails to enter appearance is deemed to admit the validity of the decree obtained against the defendant, and his own liability to indemnify to the extent claimed in the third-party notice. 44.Rule 19 (Judgment against third party in default) governs the position where the defendant suffers judgment by default; it is Rule 21, headed “Judgment after trial against third party in default”, that speaks to the position obtaining here, where the suit proceeded to full trial and the 3rd Party defaulted throughout. It is telling that Ground 8 of the Memorandum of Appeal itself correctly identifies Order 1 Rule 21(1), and not Rule 22, as the provision engaged. 45.Reading Rules 17 and 21 together, once the Respondent’s suit proceeded to trial and resulted in a decree against the Appellant, Timothy Kinoti Kaburu’s default in entering appearance operated as a deemed admission of the validity of that decree and of his own liability to indemnify the Appellant to the extent claimed in the third-party notice namely, that he, and not the Appellant, was answerable in respect of the vehicle by virtue of the sale the Appellant pleaded against him. The trial court, having itself recorded the 3rd Party’s default, ought on that footing to have entered judgment for the Appellant against him, rather than treating the Appellant’s application as procedurally erroneous. 46.This conclusion should not be misunderstood as reopening the finding on primary liability. The third-party procedure exists to enable a defendant found liable to a plaintiff to recover indemnity from another; it does not permit a defendant to escape its own liability to the plaintiff by joining, and obtaining the default of, a third party. 47.The Respondent’s judgment against the Appellant stands independently, on the ownership and negligence findings made above. It follows that while the Appellant’s liability to the Respondent is upheld, the trial court erred in failing to enter a corresponding judgment of indemnity in the Appellant’s favour against the 3rd Party. Ground 8 succeeds. (e) Quantum of general damages 48.Ground 6 complains that the trial court “grossly misdirected herself in ignoring” the authorities cited on quantum. That complaint is not made out: the trial judgment expressly records that the guiding authorities from both sides were considered. The real complaint is not that the authorities were ignored, but that the figure ultimately reached is not adequately anchored to them, a complaint about the result, which I address together with Ground 7. 49.The applicable principles are not in dispute. General damages compensate; they do not enrich. Comparable injuries should attract comparable awards, subject to due allowance for inflation and the passage of time. Decided cases are guides and not straitjackets. And an award will not be disturbed on appeal unless shown to proceed on a wrong principle or to be so inordinately high or low as to represent an entirely erroneous estimate. See Jabane v Olenja [1986] KLR 661; Boniface Waiti & Another v Michael Kariuki Kamau [2007] eKLR; and Kadima v Omumu, Civil Appeal 50 of 2023 [2024] KEHC 7681 (KLR), where it was held that“An appellate court will not disturb an award for damages unless it is inordinately high or low as to represent an entirely erroneous estimate.” 50.The undisputed medical evidence is that the respondent sustained a hairline fracture of the head of the 5th metatarsal of the left foot, a fracture of the radial head of the left elbow, and soft tissue injuries, resulting in an assessed permanent incapacity of only 3%, and that by the time of examination he had substantially recovered. 51.Measured against comparable authority, this places the injuries in the middle of the range. At the lower end, Rivatex v Philip Mochache Nyabayo [1999] eKLR awarded Kshs. 240,000/= for a single metatarsal fracture, and Silphanus Kumbe Murondo v Lamek Mbaka Motegi & Another [2013] eKLR awarded Kshs. 220,000/= for a single metacarpal fracture, both single-fracture cases, unlike the present. 52.At the upper end, awards of only Kshs. 400,000/= were made for injuries considerably graver than the Respondent’s: Wakim Sodas Limited v Sammy Aritos [2017] eKLR (a fractured rib together with a compound tibia/fibula fracture), and Daniel Otieno Owino & Another v Elizabeth Atieno Owuor [2020] eKLR, where the High Court reduced an award from Kshs. 600,000/= to Kshs. 400,000/= for a compound tibia/fibula fracture, a deep cut wound with tissue damage, a head injury and blunt chest injuries. 53.The closest comparator on the facts is John Mangi Kiiru v Salome Njeri Mwangi [2019] eKLR, where an award of Kshs. 450,000/= for two metatarsal fractures with soft tissue injury, pain and swelling was left undisturbed on appeal. 54.Measured against that body of authority, an award of Kshs. 700,000/= is not properly anchored to comparable precedent, and represents an inordinately high estimate. I have made some allowance for the fact that the Respondent’s injuries span two anatomically distinct sites, marginally more extensive than the two same-site fractures in John Mangi Kiiru, and for the passage of time since that award. 55.I have equally had regard to the modest 3% permanent incapacity and the evidence of substantial recovery. Balancing these considerations, I find that Kshs. 500,000/= represents fair, adequate and properly anchored compensation. 56.To that extent, Grounds 6 and 7 succeed, and the award of general damages is varied accordingly. The disallowance of special damages, not having been challenged by either party on this appeal, is undisturbed. (f) Costs 57.Ground 9 challenges the award of costs and interest at the trial court. Section 27 of the Civil Procedure Act (Cap. 21) confers a discretion as to costs, ordinarily exercised so that costs follow the event. The respondent succeeded, and continues on this appeal to succeed, on the central question of liability; there is no basis to disturb the trial court’s order that the appellant bear the costs of the suit, together with interest, now applicable to the varied decretal sum. 58.As regards the costs of this appeal, the outcome is a divided one: the Appellant has failed on liability but succeeded, in part, on quantum and substantially on the 3rd Party point. Mindful of the guidance in Farah Awad Gollet v CMC Motor Group Limited (2018) eKLR that the discretion as to costs, though wide, must be exercised judiciously, I consider it just that each party bear its own costs of this appeal. 59.The 3rd Party, having defaulted throughout and occasioned this limb of the appeal, shall bear the Appellant’s costs of the third-party proceedings, both at the trial court and on this appeal. F. Disposition 60.For the foregoing reasons, I make the following orders:a)The appeal is allowed in part.b)The finding that the Appellant, Bhavin Motors Limited, was the registered and legal owner of motor vehicle registration number KBA 793Y as at 16th March 2010, and the consequent finding that the Appellant is 100% liable for the accident, are upheld.c)The award of general damages of Kshs. 700,000/= is set aside and substituted with an award of Kshs. 500,000/=, together with interest thereon at court rates from the date of filing suit until payment in full.d)The disallowance of special damages is undisturbed.e)The finding declining to enter judgment for the Appellant against the 3rd Party, Timothy Kinoti Kaburu, is set aside. Judgment is entered in favour of the Appellant against the 3rd Party for indemnity to the full extent of the sums, inclusive of interest and costs, payable by the appellant to the respondent under this judgment.f)The order as to costs of the suit, awarded to the Respondent, is upheld.g)Each party shall bear its own costs of this appeal, save that the 3rd Party shall bear the Appellant's costs of the third-party proceedings at the trial court. It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 16th DAY OF July 2026.……………………………………………………BENARD WAFULA MURUNGAJUDGEDelivered on a virtual platform in the presence of:Owino instructed by COOTOW Law for the AppellantsWanyonyi Muhia instructed for Respondents (N/A)Kevin Babu - Court Assistant