[2020] KEHC 2194 (KLR)
The court found that while the appellant was the registered owner of the motorcycle at the time of the accident, the production of a sale agreement showing transfer of ownership to a third party was sufficient to rebut the presumption of ownership under Section 8 of the Traffic Act. The court held that the appellant...
Source-derived case information.
- Citation
- [2020] KEHC 2194 (KLR)
- Parties
- Appellant: Captain Motorcycle Manufacturing Co. Ltd; Respondent: James Maxwell Okiri Mochache; Respondent: Benard Omoi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 402 of 2018
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Vicarious Liability, Ownership of Motor Vehicles, Burden of Proof, Traffic Act Section 8
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Captain Motorcycle Manufacturing Co. Ltd
Appellant
James Maxwell Okiri Mochache
Respondent
Benard Omoi
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant was vicariously liable for the negligence of the 2nd respondent after the sale of the motorcycle.
- 2 Whether production of a sale agreement was sufficient to dislodge the presumption of ownership under Section 8 of the Traffic Act.
- 3 Whether the trial court erred in holding the appellant liable despite evidence of sale.
Ratio Decidendi
The court found that while the appellant was the registered owner of the motorcycle at the time of the accident, the production of a sale agreement showing transfer of ownership to a third party was sufficient to rebut the presumption of ownership under Section 8 of the Traffic Act. The court held that the appellant had discharged its evidentiary burden by providing the sale agreement, and the failure by the 2nd respondent to effect a change of ownership could not be attributed to the appellant. Consequently, there was no basis for imposing vicarious liability on the appellant for the acts of the 2nd respondent. The appeal was allowed, and the lower court's decision was set aside.
Court Disposition
appeal_allowed
Orders
- The appeal is allowed.
- Each party shall bear their own costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 402 OF 2018
CAPTAIN MOTORCYCLE MANUFACTURING CO. LTD.....................APPELLANT
VERSUS
JAMES MAXWELL OKIRI MOCHACHE .....................................1ST RESPONDENT
BENARD OMOI .....................................................................................2ND RESPONENT
(Being an appeal from the Judgment of the Hon. Mr. D.O. Mbeja (S.R.M) in the chief magistrate’s court
at Milimani Commercial Court in C.M.C.C No. 2232 of 2014 delivered on the 8th September, 2017)
JUDGMENT
This appeal arises from the judgment of the lower court delivered on 8th September, 2017. The 1st respondent was said to have been injured after he was knocked down by a motor cycle registration No. KMDC 392X which was being ridden by the 2nd respondent. The 2nd respondent though served did not enter any appearance or file any defence. An interlocutory judgment was then entered against the 2nd respondent and the suit proceeded for hearing.
At the close of the 1st respondent’s case, counsel for the appellant informed the court that he had one witness. A sale agreement dated 23rd August, 2013 was admitted as defence exhibit 1 by consent and the defence case closed. Submissions were then filed followed by the judgment now challenged in this appeal.
The thrust of this appeal is that the motor cycle had been sold to a 3rd party who was then vested with all legal responsibility for acts of negligence committed after the sale. The lower court was therefore wrong to hold the appellant liable for acts of the 2nd respondent.
Both parties have filed submissions in the argument of the appeal. It is my duty as the first appellate court to consider the evidence adduced before the trial court so as to arrive at independent conclusions.
There is no dispute that the records held by the registrar of motor vehicles indicated the appellant was the owner of the subject motor cycle. Defence exhibit 1 is a motor cycle sale agreement between the appellant and one Benard Michika Mose. It is dated 23rd August, 2013. The motor cycle sold to the buyer is the one cited in the pleadings as registration No. KMDC 392X. It is said the appellant is a manufacturer of motor cycles. This document was admitted in evidence by consent. Prima facie therefore, the 1st respondent in this appeal conceded the appellant had sold the motor cycle to the party named therein. In his judgment, the trial magistrate referred Section 8 of the traffic Act which states as follows,
“The person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle.”
The lower court placed emphasis on the fact that the original sale agreement was not produced and that the copy of records dated 27th February, 2014 indicated the motor cycle was owned by the appellant herein. The 1st respondent did not object to the production of the copy of the sale agreement. In any case, chances are that the original agreement was in the possession of the 2nd respondent who had purchased the motor cycle from the appellant.
It is important to note that the provisions of Section 8 of the Traffic Act are not absolute in that, if the person in whose name the motor vehicle is registered were to provide evidence, to prove otherwise, then that registration is dislodged. Proof is on a balance of probability. So, in effect, ownership is qualified. The appellant in this case produced evidence in the form of a copy of the sale agreement to prove that it had sold was the owner of the motor cycle. That alone was enough to tilt the scales in its favour. - see Muhambi Koja vs. Saidi Mbwana Abdi (2015) e KLR.
The 2nd respondent on the other hand was supposed to change the ownership of the motor cycle after 14 days from the date of purchase - see Section 9 of the Traffic Act. His failure to do so cannot be blamed on the appellant.
In view of the foregoing, there was no relationship that was established by way of evidence between the appellant and the 2nd respondent to justify vicarious liability on the part of the appellant. It must be remembered under Section 107 of the Evidence Act, Cap 80 laws of Kenya, that the 1st respondent had a duty to persuade the court on all fronts stated in his pleadings.
The production of the sale agreement by the appellant which formed its defence was sufficient to dislodge the 1st respondence case. He could only blame the 2nd respondent who did not appear or file any defence. I have come to the conclusion that there is merit in this appeal which is hereby allowed but each party shall bear their own costs.
Dated and delivered at Nairobi this 15th day of October, 2020.
A.MBOGHOLI MSAGHA
JUDGE