Car & General (Trading) Limited v Alfred Lihanda Ominde & Robert Amwai Okillo

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **CIVIL APPEAL NO. E011 OF 2025** **CAR & GENERAL (TRADING) LIMITED** **APPELLANT** **=VERSUS=** **ALFRED LIHANDA OMINDE** **1ST RESPONDENT/PLAINTIFF** **ROBERT AMWAI OKILLO** **2ND RESPONDENT/PLAINTIFF** *(Being an appeal from the Judgment and Decree of Hon. J. A. Agonda (PM) delivered on 21st January 2025 in Vihiga Chief Magistrate’s Civil Suit No. E057 of 2022* **Coram: Before Justice R. Nyakundi** **Kabiru & Co. Advocates** **Ngala Awino & Co. Advocates** **JUDGMENT** **Introduction** 1. Car & General (Trading) Limited, the Appellant herein, was the 2nd Defendant in Vihiga Chief Magistrate’s Civil Suit No. E057 of 2022. By a judgment delivered on 21st January 2025, Hon. J. A. Agonda (PM) found the Defendants jointly and severally liable at 100% for a road traffic accident that occurred on 7th February 2022 and awarded the Plaintiff, now the 1st Respondent/Plaintiff, general damages of Kshs. 130,000/= together with the costs of the suit and interest thereon at Court rates from the date of judgment until payment in full. 2. Being dissatisfied with that decision, the Appellant preferred this appeal by a Memorandum of Appeal dated 12th February 2025, in which it set out thirty-one (31) grounds of appeal. The appeal is directed at both the finding on liability and, in the alternative, at the quantum of the award. 3. The 1st Respondent/Plaintiff, Alfred Lihanda Ominde, was the Plaintiff in the subordinate Court. The 2nd Respondent/Plaintiff, Robert Amwai Okillo, was the 1st Defendant. He neither entered appearance nor filed a defence; an interlocutory judgment was entered against him on 27th October 2022. He has likewise not participated in this appeal, although he was duly served with the Record of Appeal. **The case before the Trial Court** ***(a) The pleadings*** 1. By a Plaint dated 16th March 2022 and filed on 18th March 2022, the 1st Respondent/Plaintiff sued both Defendants in negligence. At paragraph 4 of the Plaint he pleaded, in terms, that: *“At all material times to this suit, the 1st Defendant is the actual owner of motor bike registration number KMFY 220R while the 2nd Defendant is the registered owner of motor bike registration number KMFY 220R.”* 1. At paragraph 5 he pleaded that on or about 7th February 2022 he was riding motor cycle registration number KMFX 758F along the Chugi – Muhudu marram road when motor cycle registration number KMFY 220R was so negligently, carelessly and/or recklessly ridden by “the Defendant, his rider, servant and/or agent” that it lost control and hit his machine, occasioning him bodily injury. He particularized the negligence complained of and pleaded two injuries, namely (a) tenderness along the left hand, and (b) a tender swollen right ankle joint. He prayed for general damages, costs and interest. No special damages were pleaded. 2. The Appellant entered appearance and filed a Statement of Defence dated 18th August 2022 in which it denied the claim in its entirety. Of present importance, at paragraphs 7 and 8 of that Defence the Appellant pleaded, in the alternative and without prejudice, that it is in the business of wholesale importation and distribution of motor cycles and three-wheeler motor vehicles; that if its name appeared as owner of motor cycle registration number KMFY 220R (which it denied), that was purely in compliance with the regulatory requirements of the National Transport and Safety Authority; and, critically, that it had sold the suit motor cycle to Robin Afric Limited on 11th January 2022, a date prior to the date of the alleged accident. The 1st Respondent/Plaintiff did not file a reply to that Defence. ***(b) The evidence*** 1. The 1st Respondent/Plaintiff at the Trial Court called three witnesses. PC Damaris Mutunga, a Traffic Police Officer at Vihiga Police Station, produced the police abstract. It was her evidence that on 7th February 2022 motorcycle registration number KMFY 220R lost control, left its lane and hit motor cycle registration number KMFX 758F head-on, both automobiles sustaining frontal damage; that both were insured; and that the matter was under investigation by PC Koech. On cross-examination she testified that the initial report showed that KMFY 220R was ridden by one John Alta; that paragraph 1(a) of the police abstract named Robert Amwai Okillo as the owner of the machine; that upon interviewing the rider he stated that his employer was Robert Amwai; that Robert Amwai confirmed to the police that he was the person who had given the motor cycle to John Alta to ride; that Robert Amwai held possession while actual ownership and control of the automobile; and that the automobile was released to him as owner. On re-examination she confirmed that the registered owner according to the search was Car & General (Trading) Limited and that she blamed the rider of KMFY 220R for failing to keep his lane. 2. The Clinical Officer, Obadiah Ndege of Vihiga County Referral Hospital, produced the P3 form dated 9th February 2022, the treatment notes and the receipt. He classified the degree of injury as “harm” and confirmed that the 1st Respondent/Plaintiff was treated as an outpatient. 3. The 1st Respondent/Plaintiff testified in person. He is a bodaboda rider. He adopted his witness statement and produced his documents, including a copy of records from the Registrar of Motor Vehicles showing the Appellant as the registered owner. On cross-examination he was emphatic that the owner of KMFY 220R was Robert Amwai Okillo; that the said owner had personally told him so; and that the automobile was being used in bodaboda business and was at the material time transporting alcohol. He confirmed that he had never spoken to “Brian”, the other name appearing on the abstract. 4. For the defence, Joseph Mulwa Mwambi, the Appellant’s Logistics Coordinator in charge of motor cycles and three-wheeler motor vehicles (Staff Number 4191), adopted his statement dated 22nd August 2022 and produced three exhibits: DExh.1, a paid-up Tax Invoice/Delivery Note No. DIST350013040 dated 11th January 2022 in favour of Robin Afric Limited; DExh.2, the Appellant’s list of employees as at 28th February 2022; and DExh.3, a circular from the National Transport and Safety Authority (NTSA/DRL/REG.VOL.1) dated 7th September 2020. His evidence was that the Appellant does not own motor cycles for its own use or for commercial purposes; that it had sold the suit motor cycle to Robin Afric Limited on 11th January 2022, which took possession immediately upon purchase; that any registration of the automobile in the Appellant’s name was made purely to comply with the statutory requirements placed on importers and dealers by the NTSA; that neither the rider nor the 1st Defendant was its employee; and that the Appellant does not insure motor cycles that it sells. **THE JUDGMENT APPEALED FROM** 1. The learned trial Magistrate framed five issues and resolved them as follows. On ownership, she held that the Appellant was the registered owner as at 7th February 2022, relying on the copy of records from the Registrar of Motor Vehicles, and added that this evidence “was fortified by Pw2 who produced the police abstract indicating the 2nd Defendant as registered owner.” She found, secondly, that the accident had indeed occurred as alleged. 2. On blameworthiness, the learned Magistrate preferred the 1st Respondent/Plaintiff’s version. She reasoned that the Appellant, liability being hotly contested, ought to have produced a comprehensive motor vehicle inspection report and called the motor vehicle inspector and the 1st Defendant; that DW1’s evidence went only to ownership and would have required corroboration by eye witnesses whom the Appellant did not call; that by dint of Order 2 Rule 6 of the Civil Procedure Rules she had “no option but to reject DW1’s version”; and that the Appellant’s failure to call eye witnesses attracted an unfavourable presumption under Section 119 of the Evidence Act. She then held that “The 1st Defendant who was the employee of 2nd Defendant ought to have been watchful of other road users” and concluded that “the 2nd Defendant was vicariously liable for his rider’s negligent act and having employed careless and unskilled driver.” She entered liability at 100% against the Defendants jointly and severally. 3. On quantum, and after considering *George Mugo & Another v A.K.M (minor suing through next friend and mother of A.N.K) [2018] eKLR, George Kinyanjui t/a Climax Coaches & Another v Hussein Mahad Kuyala [2016] eKLR and Ndungu Dennis v Ann Wangari Ndirangu & Another [2018] eKLR,* she awarded Kshs. 130,000/= as general damages for pain and suffering, declined to award special damages (none having been pleaded), and awarded costs and interest. **The appeal and the submissions** 1. The thirty-one grounds in the Memorandum of Appeal are prolix and substantially repetitive. Reduced to their essentials, they raise five complaints: (i) that the trial Court erred in finding the Appellant to be the owner of motor cycle registration number KMFY 220R and in failing to appreciate the distinction between registered, beneficial and possessory ownership (grounds 1, 3, 5, 7, 8, 9, 18, 19, 25, 26, 28 and 30); (ii) that it erred in finding the Appellant vicariously liable in the absence of any evidence of an employment or agency relationship between the Appellant and the rider (grounds 11 to 17 and 24); (iii) that it misapplied the burden and standard of proof and disregarded uncontroverted documentary evidence (grounds 2, 4, 6, 20, 21, 22, 23 and 31); (iv) that it failed to follow binding authority (ground 27); and (v) that the award of damages was excessive in the circumstances (ground 29). 2. The appeal was canvassed by way of written submissions clustered in the following thematic areas: *whether the trial Magistrate erred in finding the Appellant/2nd Defendant as the owner of the motorcycle registration No. KMFY 220R, whether the Appellant enjoyed any categories of ownership of the motorcycle registration no. KMFY 220R after sale, whether the trial Magistrate erred in finding the Appellant/2nd Defendant vicariously liable for the accident, whether the trial Magistrate erred by not appreciating the evidence adduced when rendering the judgment, burden and standard of proof, and who should bear the costs.* In buttressing the appeal grounded on this issues learned Counsel for the Appellant placed reliance on the principles elucidated in the following case law: *Toroitich v Kibe & Another CA E124 of 2023 [2024] KEHC 251 KLR, Muhambi Koja v Said Mbwana Abdi [2015] eKLR, Abson Motors Ltd v Tabitha Syombua Mutua & Anther [2019] eKLR, Car & General Trading Ltd v Owino & Another [2023] KEHC 19397 KLR, Gichira Peter v Lucy Wambura Ngaku & Another (2021) eKLR, Jared Magwaro Bundi & Another v Primarosa Flowers Ltd [2018] eKLR, Securicor Kenya Ltd v Kyumba Holdings Ltd (2005) eKLR, Mohamed Guyo Boru v Richard Mwilaria Aritho [2022]eKLR, Nancy Ayemba Ngaira vs Abdi (2010) eKLR, Samuel Mukunya Kamunge v John Mwangi Kamuru in CA No. 34 of 2002, Wellington Nganga Muthiora vs Akamba Public Road & Another CA [2010] eKLR, General Motors East Africa Ltd v Eunice Alila Ndeswa & Another (2015) eKLR, Lion of Kenya Insurance Co. Ltd v Edwin Kibuba Kihonge[2018] eKLR, Statpack Industries Ltd vs James Mbithi (2005) eKLR, Christine Kalama v Jane Wanja Njeru & Another [2021] eKLR, John Nderi Wamugi vs Rubesh Okumu Otiagala & 2 Others Kisumu CA 24 of 2015, M.O.M Amin Transporters Ltd Mariam Amin Bahi v Alexander Ndung’u Mbugua & 2 Others [2019] eKLR, Morgan v Launchbury & Another 1972 2 ALL ER 606, Joseph Wabukjo Mbayi v Frida Onyango (2019) eKLR, Kiema Mutuku v Kenya Cargo Holdings Hauling Services Ltd (1991) 2KAR 258, Dharmagma Patel & Another v T A (a minor suing trhough the mother and next friend HH) [2014] eKLR, M’Bita Ntiro v Mbae Mwirichia & Another [2018] eKLR, Ahmed Mohammed Noor vs Abdi Aziz Osman (2019) eKLR, Alice Wanjiru Ruhiu v Messiac Assembly of Yahweh [2021] eKLR, Car and General Trading Ltd v Nyagaka & Another [2025] KEHC 1960 KLR, Cecilia Karuru Ngayu v Barclays Bank of Kenya (2016) eKLR*. All what the Learned Counsel invited the Court to appreciate in reference to the principles illuminated in the above cases is that the Appellant was wrongly sued in the Lower Court and further dragged to the High Court in a civil dispute which there are no justiciable issues to warrant any Court or independent Tribunal to make a finding on liability in any judgment as known in law. It was also the contention of learned Counsel that the Learned Magistrate failed to appreciate and internalize the doctrine of vicarious liability which flow from an employee/employer contractual relationship. He therefore prayed for the appeal to be allowed in so far as the connecting factors of liability are concerned in the civil claim filed by the Plaintiff Alfred Lihanda Ominde. 3. The Appellant’s essential contention is that the presumption of ownership created by Section 8 of the Traffic Act, Cap 403, is rebuttable; that it discharged the burden of rebutting it by producing a fully paid-up tax invoice and delivery note evidencing an absolute cash sale of the automobile to Robin Afric Limited on 11th January 2022, some four weeks before the accident, together with an NTSA circular explaining why the automobile stood registered in a dealer’s name; and that in the absence of any nexus between it and the rider of the machine, no vicarious liability could attach to it. 4. The 1st Respondent/Plaintiff, by submissions dated 16th April 2026 filed by Learned Counsel Ngala Awino, framed a single issue, namely whether the learned trial Magistrate erred in entering judgment in his favour. He submits that the Police Officer confirmed on cross-examination that the search revealed the automobile to be registered in the Appellant’s name; that DW1 conceded that the Appellant never initiated the transfer of the automobile and never applied to be struck out of the suit; that the Appellant never called the police to rebut his case; and that the trial Court properly evaluated the pleadings, the evidence and the submissions of both parties. He relies on *Baro Ngo Sevelius Yophen v Jared Ndemo [2020] eKLR* and urges that the appeal be dismissed with costs. 5. The 2nd Respondent/Plaintiff, against whom an interlocutory judgment had been entered in the trial Court, filed no submissions and made no appearance. **The duty of this Court as a First Appellate Court** 1. This being a first appeal, my mandate is settled. In *Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123* the Court of Appeal for East Africa stated that a first appeal is by way of retrial and that the first appellate Court is under a duty to reconsider and re-evaluate the evidence on record, weigh conflicting evidence and draw its own conclusions, bearing always in mind that it has neither seen nor heard the witnesses and must make due allowance in that respect. The same principle was restated in *Kiruga v Kiruga & Another [1988] KLR 348.* 2. That deference is not, however, unlimited. As was held in *Peters v Sunday Post Ltd [1958] EA 424 and in Ephantus Mwangi v Duncan Mwangi Wambugu [1982–1988] 1 KAR 278*, an appellate Court will interfere with findings of fact where it is shown that the trial Court failed to take account of particular circumstances or probabilities, or misapprehended the evidence, or acted on a wrong principle, or where the impugned finding is one which no reasonable tribunal, properly directing itself on the evidence, could have reached. I approach the record with those principles firmly in mind. **Issues for determination** 1. Having considered the Record of Appeal, the Supplementary Record of Appeal, the grounds of appeal and the submissions of Counsel, the issues that fall for my determination are these: 2. Whether an accident occurred on 7th February 2022 involving motor cycles registration numbers KMFY 220R and KMFX 758F, and whether it was occasioned by the negligence of the rider of KMFY 220R; 3. Whether the Appellant was the owner of motor cycle registration number KMFY 220R at the material time; 4. Whether, on the evidence on record, the Appellant was vicariously liable for the negligence of the rider of that machine; 5. Whether the learned trial Magistrate properly drew an adverse inference against the Appellant under Section 119 of the Evidence Act and properly invoked Order 2 rule 6 of the Civil Procedure Rules; 6. Whether the award of Kshs. 130,000/= in general damages warrants interference; and 7. Who should bear the costs of this appeal and of the suit in the Subordinate Court. **Analysis and determination** ***(i) The occurrence of the accident and the negligence of the rider of KMFY 220R*** 1. The tort of negligence in road traffic accidents is proven by establishing that out of the two or more parties on the highway or any motorable roads either one of them breached the duty of care and as a result of which it led to loss, injury or damage to the Claimant/Plaintiff that was foreseeable. This is the position taken by the persuasive authority of *Ng Chun Pui and Ng Wang King v Lee Chuen Tat et al [198] UK PC 7 reminds us of the burden and standard of proof in a negligence matter. He stated at pages 3 and 4 of his judgment that:* *“The burden of proving negligence rests throughout the case on the Plaintiff. Where the Plaintiff has suffered injuries as a result of an accident which ought not to have happened if the Defendant had taken due care, it will often be possible for the Plaintiff to discharge the burden of proof by inviting the Court to draw the inference that on the balance of probabilities the Defendant must have failed to exercise due care, even though the Plaintiff does not know in what particular respects the failure occurred…… it is the duty of the judge to examine all the evidence at the end of the case and decide whether on the facts he finds to have been proved and on the inferences he is prepared to draw he is satisfied that negligence has been established.”* 1. The key principles on two vehicles collision which must be tested evidentially by the trial Court: * *No Automatic Presumption:* The mere fact that a head-on or rear-end collision occurred between two vehicles does not mean both drivers are equally to blame. * *Standard of Proof under Section 107(1) of the Evidnec Act:* In Road Traffic Accident cases Claims Tribunal negligence is judged on preponderance of probability, not proof beyond reasonable doubt. * *Specific Attribution:*Contributory or composite negligence requires direct evidence showing a specific act or omission (such as excessive speed, wrong side driving, or lack of lights on a parked vehicle) that materially contributed to the accident. * *Duty of Care:*The legal obligation to avoid actions or omissions that could foreseeably harm other road users. * *Breach of Duty:* The failure to act like a reasonably prudent driver under similar circumstances. * *Causation:* A direct link showing that the Defendant’s breach was the proximate cause of the accident. * *Damages:* Proof of actual physical, financial, or property damage resulting from the crash 1. A Trial Court is always faced with the issue of dealing with the challenge on the ground of contributory negligence to be attributed to the victim in a road traffic accident claim. There is therefore the question of proximate cause on causation issues with regard to the breach of the duty of care. In exercising judicial discretion, the core elements of negligence in road traffic accidents must be factored in making a finding on liability. This is the position the Courts have taken in Kenya in reaffirming the jurisprudence on the elements of negligence: * *Mutunga v Mukadili (Civil Appeal E104 of 2024): The High Court re-established that the complete burden of proof lies on the Plaintiff to distinctly establish duty, breach, causation, and injury. The Court emphasized that judges must evaluate the specific credibility of testimonies and the cogency of the facts rather than relying blindly on general accident occurrences* * *Minor & another v Kurui (Civil Appeal E011 of 2023): Citing the foundational common law doctrine from*Donoghue v Stevenson*, the High Court ruled that a claimant cannot succeed in an active road traffic claim without proving that a duty of care was owed, that it was breached, and that the loss directly flowed from that breach. Notably, the Court clarified that medical records do not necessarily require rigid documentary treatment notes if oral evidence establishes a cohesive timeline of injury.* * *Orioki v Kevian Kenya Limited (Civil Appeal 341 of 2019): This case dealt heavily with the standard of care regarding following distance. The Court confirmed that under the traffic rules of Kenya, drivers have an implicit duty of care to maintain a safe stopping distance. Failing to do so constitutes a direct breach, making the rear-ending driver wholly liable for the proximate cause of the collision.* * *Mwaka v Karua & another (Civil Case E261 of 2022): The Court cited*Telkom Kenya Limited & 2 others v. to*rule that every driver is under a common law obligation to exercise a high degree of caution toward passengers and other road users. Crucially, the judgment underscored that a Police Abstract is only proof that an accident was reported, not proof of negligence itself. The Plaintiff must adduce independent evidence describing how the driver’s negligence triggered the event.* * *Muchemi v Mbugua & Another (2009 eKLR): The High Court found the Defendant 100% liable for negligence because he breached his duty of care by driving on the wrong side of the road, leading directly to a head-on collision with the Plaintiff’s vehicle.* 1. This appeal will be tested within these parameters of the law to establish whether the Trial Court was able to determine liability within the laid down principles. On this issue the evidence was, in truth, all one way. The 1st Respondent/Plaintiff testified that he was lawfully riding motor cycle registration number KMFX 758F from Chugi when motor cycle registration number KMFY 220R, coming from the direction of Mulundu, lost control at a corner, crossed into his lane and collided with him head-on. The Investigating Officer confirmed the frontal damage to both machines, consistent with a head-on collision, and confirmed that KMFY 220R had left its lane. The police abstract, produced without objection, records an accident on that date, at that place, involving those two machines. 2. A rider who permits his automobile to leave its own carriageway and to cross into the path of oncoming traffic is, in the absence of any explanation, negligent. No explanation was offered. Neither the rider nor the 2nd Respondent/Plaintiff gave evidence, and the Appellant – whose case was not that the accident happened differently but that it had nothing whatever to do with the automobile – offered none. The particulars of contributory negligence pleaded in the Defence were wholly unsupported by evidence and were, in substance, abandoned. On my own independent re-evaluation of the evidence I am satisfied, on a balance of probabilities, that the accident occurred as alleged and that it was occasioned wholly by the negligence of the rider of motor cycle registration number KMFY 220R. To that extent the finding of the trial Court that liability lies at 100% is unassailable, and I affirm it. 3. I should note, in passing, that the opening paragraph of the impugned judgment describes the 1st Respondent/Plaintiff as a “pillion passenger onboard the Defendant’s motor vehicle registration number KMFX 758F.” That is inaccurate: KMFX 758F was the 1st Respondent/Plaintiff’s own automobile and he was its rider, carrying a pillion passenger of his own. The error is, however, immaterial to the outcome, since on either footing he was a lawful road user against whom no blame was established. ***(ii) Was the Appellant the owner of motor cycle registration number KMFY 220R?*** 1. This is the pivot on which the appeal turns. Section 8 of the Traffic Act, Cap 403, Laws of Kenya provides: *“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 words “unless the contrary is proved” are the whole point. Section 8 creates a presumption, not a rule of title, and the presumption is rebuttable. In *Osapil v Kaddy [2000] 1 EA 187* the Court of Appeal of Uganda held that a registration card or logbook is only *prima facie* evidence of title to a motor vehicle. In *Nancy Ayemba Ngaira v Ali Abdi [2010] eKLR,* Ojwang J (as he then was) observed that the indication on a certificate of search is not final proof that the sole owner is the person whose name is shown, and that judicial practice has developed the concepts of actual ownership, beneficial ownership and possessory ownership, any of which may, for practical purposes, be far more relevant than the name on the register. In *Ramesh V. Hiran v Justus Murianki & Another [2017] eKLR,* Gikonyo J held that registration in the register of motor vehicles is *prima facie* proof of ownership but may be rebutted by evidence; and in *Samuel Mukunya Kamunge v John Mwangi Kamuru [2005] eKLR*, Okwengu J (as she then was) recognised that vehicles often change hands without the records being amended, so that a certificate of search is not conclusive proof of actual ownership. The same approach was taken by *Aburili J in**Car & General Trading Limited v Owino & Another (Civil Appeal No. E098 of 2021).* 2. The 1st Respondent/Plaintiff discharged his initial evidential burden by producing the NTSA copy of records, which shows the Appellant as the registered owner as at 10th March 2022. The presumption thereupon arose, and with it the evidential burden shifted to the Appellant under Section 109 of the Evidence Act to prove the contrary. The question is whether it did so. 3. In my judgment it did, and by a considerable margin. The Appellant produced DExh.1, a Tax Invoice/Delivery Note No. DIST350013040 issued by its Nakuru Distribution Branch, dated 11th January 2022, in favour of Robin Afric Limited. That document is not a bare assertion. It particularizes each automobile sold by chassis number, engine number and registration number. Among the units listed is a TVS Star HLX 150 bearing chassis number MD625AE32M1F03611, engine number BE3FM1803371 and registration number KMFY220R. Those three particulars correspond precisely, digit for digit, with the particulars appearing on the NTSA copy of records produced by the 1st Respondent/Plaintiff himself. The document bears the stamp and signature of the purchaser, Robin Afric Limited, dated 12th January 2022, acknowledging receipt, and it is expressed to be fully paid, the total consideration for the consignment being KES 4,019,672. The accident occurred on 7th February 2022 – some four weeks after that sale and delivery. 4. The Appellant went further and explained why its name appeared on the register at all. DExh.3 is a circular from the National Transport and Safety Authority dated 7th September 2020 addressed to all motor vehicle and motor cycle dealers, which directs that registration of any unit shall be as per the customs entry, and that “the dealer or the importer should apply for registration under their names and KRA PIN as per the declaration of the Custom’s Entries”, failing which any application at variance with that requirement would be rejected with effect from 9th September 2020. That explanation is corroborated on the face of the very search relied upon by the 1st Respondent/Plaintiff: it records a Customs Entry Number (2021NKU145689), a date of registration of 7th December 2021, and the condition of the automobile as “New”. Those are the hallmarks of a dealer’s importation registration, not of a user’s registration. 5. Finally, the Appellant produced DExh.2, its list of employees as at 28th February 2022, running to some 565 names. Neither John Alta, the rider, nor Robert Amwai Okillo, the 2nd Respondent/Plaintiff, appears anywhere upon it. 6. None of this evidence was met by evidence in rebuttal. The 1st Respondent/Plaintiff filed no reply to the Defence. He raised no objection when DExh.1 was produced. He led no evidence impugning its authenticity. The whole of the cross-examination on the point went to a single, and quite different, proposition – that the Appellant had not completed the transfer of the automobile at the NTSA. That, with respect, does not answer the case. Failure to procure the amendment of a public register is a regulatory omission; it does not undo a concluded contract of sale under which property and possession have passed for full value. As the authorities cited above make plain, the very mischief which Section 8 accommodates is that machines change hands while the records lag behind. Uncontroverted documentary evidence of an antecedent sale is precisely the sort of “credible and cogent evidence” which rebuts the statutory presumption. 7. There is, however, a further and to my mind conclusive consideration, and it is one which appears not to have been drawn to the attention of the learned trial Magistrate. The 1st Respondent/Plaintiff’s own Plaint, at paragraph 4, pleaded in terms that the 1st Defendant – the 2nd Respondent/Plaintiff – was the actual owner of motor cycle registration number KMFY 220R, and that the Appellant was merely its registered owner. Parties are bound by their pleadings, and a Court is not entitled to grant relief on a case which the party seeking it has not pleaded: see *Independent Electoral and Boundaries Commission v Stephen Mutinda Mule & 3 Others [2014] eKLR.* Having himself pleaded that the Appellant was no more than the paper owner and that actual ownership lay elsewhere, the 1st Respondent/Plaintiff could not thereafter invite the Court to fix the Appellant with the very species of ownership he had expressly attributed to another. 8. That pleading was, moreover, faithfully borne out by his own evidence. He told the Court that the owner of KMFY 220R was Robert Amwai Okillo, that the said Robert Amwai Okillo had personally told him so, and that the automobile was in bodaboda business. The Investigating Officer told the Court that the police abstract named Robert Amwai Okillo as the owner; that the rider had told the police that his employer was Robert Amwai; that Robert Amwai had confirmed that he was the person who gave the automobile to the rider; that Robert Amwai held possession, actual ownership and control of it; and that the automobile was released to him as its owner. In short, every strand of the 1st Respondent/Plaintiff’s own case placed actual, beneficial and possessory ownership in the 2nd Respondent/Plaintiff. 9. Against that background, the learned trial Magistrate’s statement that the Plaintiff’s evidence on ownership “was fortified by PW2 who produced the police abstract indicating the 2nd Defendant as registered owner” is, with respect, a plain misapprehension of the evidence. The police abstract indicated nothing of the sort. It named the 2nd Respondent/Plaintiff, not the Appellant. That misapprehension materially infected the finding on ownership. 10. I therefore find, on my own re-evaluation of the record, that the presumption arising under Section 8 of the Traffic Act was comprehensively rebutted; that as at 7th February 2022 the Appellant was, at most, the paper or registered owner of motor cycle registration number KMFY 220R; and that the actual, beneficial and possessory owner of that automobile was the 2nd Respondent/Plaintiff. The contrary finding of the trial Court cannot stand. The grounds of appeal directed at ownership succeed. ***(iii) Vicarious liability: was there any nexus between the Appellant and the rider?*** 1. This question can best be answered by the principles in the case of *MRV Churcher v Landing Co. of East Africa Ltd (EACA) [1957] 118* in which it was remarked: *The question of liability is not to be determined by any agreement between the general employers and the hirers but depends on the circumstances of the case, the proper test to apply being whether or not the hirers had the authority to control the manner of the execution of the relevant acts of the driver. There are two ways in which a contractor may employ his men and his machines. He may contract them to do the work, and, the end being prescribed, the means of arriving at it may be left to him. Or he may contract in a different manner, and, not doing the work himself, may place his servants and plant under the control of another-that is, he may lend them - and in that case he does not retain control over the work. Many factors have a bearing on the result. Who is paymaster, who can dismiss, how long the alternative service lasts, what machinery is employed-all these questions have to be kept in mind. The expressions used in any individual case must always be considered in regard to the subject matter under discussion, but among the many tests suggested the most satisfactory by which to ascertain who is the employer at any particular time is to ask who is entitled to tell the employee the way in which he is to do the work upon which he is engaged. If someone other than his general employer is authorized to do this, he will, as a general rule, be the person liable for the employee's negligence. But it is not enough that the task to be performed should be under his control, he must also control the method of performing it. It is true that in most cases no orders as to how a job should be done are given or required. The man is left to do his own work in his own way, but the ultimate question is not what specific orders, were given, but who is entitled to give the orders as to how the work should be done. Where a man driving a mechanical device, such as a crane, is sent to perform a task, it is easier to infer that the general employer continues to control the method of performance since it is his crane and the driver remains responsible to him for its safekeeping. See Mersey'a Docks and Harbour Boardv Coggins and Griffiths (Liverpool) Ltd and Mcfarlane [1946] 2 All ER 345.* 1. Even had I taken a different view of ownership, the appeal would in my judgment still have succeeded on this second and independent ground. Ownership of a chattel is not, of itself, a source of tortious liability. A Defendant is fixed with liability for the negligence of another only where the relationship between them is such as to attract vicarious responsibility – typically that of master and servant, the servant acting in the course of his employment, or that of principal and agent, the agent driving or riding for and on behalf of the principal and for the principal’s purposes. 2. The classic statements remain those in *Ormrod v Crosville Motor Services Ltd [1953] 1 WLR 1120*, where Denning LJ held that the owner of a vehicle is liable if it is being used wholly or partly on the owner’s business or for the owner’s purposes, but not where it is being used solely for the driver’s own purposes, and in *Morgans v Launchbury [1973] AC 127*, where the House of Lords rejected any doctrine of liability founded on mere ownership, interest or permission, and insisted upon proof that the driver was the owner’s servant or agent. Mere permission to use a machine, still less mere registration of it, is not enough. 3. The burden of establishing that relationship lay squarely on the 1st Respondent/Plaintiff: Sections 107 and 108 of the Evidence Act, Cap 80. He who alleges must prove. On this record there is not a scintilla of evidence linking the Appellant to John Alta, the rider of KMFY 220R. There is no contract of service, no instruction, no benefit derived, no control. On the contrary, the only evidence on the point – and it came from the 1st Respondent/Plaintiff’s own witnesses – placed the rider under the direction and in the employment of the 2nd Respondent/Plaintiff, riding on a bodaboda business from which the 2nd Respondent/Plaintiff, and not the Appellant, stood to benefit. 4. The learned Author Salmond on Torts 14th Edition 658 set the record straight in the following extract which are relevant to the facts of this case: *A master is not responsible for a wrongful act done by his servant, unless itis done in the course of his employment. But a master is liable even for acts which he has not authorized, provided they are so connected with acts which he has authorized that they might be regarded as modes-although improper modes-of doing them. In other words, a master is responsible not merely for what he has authorized his servants to do, but also for the way in which he does it. On the other hand, if the unauthorized and wrongful act of the servant is not so connected with the authorized act as to be mode of doing it, but is an independent act, the master is not responsible, for in such a case, the servant is not acting in the course of his employment, but has gone outside it*. 1. It is therefore sufficient to say that the Appellant was not in a position to authorize any of the acts of negligence committed by an employee, servant, agent of the 1st Respondent of Robert Amwai Okillo. It is also clear that the Appellant Car General (Trading) Ltd. is a company duly licensed to deal with importation of motor cycles in Kenya which then through a contractual arrangement purchasers enter into a hire purchase agreement in which right of ownership are passed to the purchaser with a caveat of the logbook to be transferred on completion of the purchase price. My reading of the entire record reveals no iota of evidence that the Appellant was involved in offering public services of carrying passengers across the country or within Chugi-Muhudu Marrum road where the collision occurred necessitating filing of the claim for damages by the injured party being Alfred Lihanda Ominde. The fact that the Appellant had not transferred the logbook to the 1st Defendant the 2nd Respondent to this appeal is not a ground to hold it liable for breach of duty of care under the tort of negligence. 2. In these circumstances the finding that “The 1st Defendant who was the employee of 2nd Defendant ought to have been watchful of other road users” has no foundation whatever on the record. It appears to have originated in a misreading of DW1’s testimony. The impugned judgment records that DW1 “averred that Robert Amwai Okillo and Brian were employees as per list of employees ‘DExh.2’.” However, DW1’s witness statement and his evidence in chief and the Appellant’s written submissions before the trial Court all show that DExh.2 was produced for precisely the opposite purpose – to demonstrate that those persons were not its employees. A finding of vicarious liability resting upon so fundamental a misapprehension of the evidence and the law cannot be allowed to stand. 3. The further finding that the Appellant had “employed [a] careless and unskilled driver” suffers from the same vice, and worse: negligent hiring was never pleaded by the 1st Respondent/Plaintiff, was never put to DW1 in cross-examination, and was supported by no evidence at all. A Court may not make a finding on a case that was neither pleaded nor canvassed. It is very intriguing that the Learned Trial Magistrate failed to appreciate the core test on vicarious liability which involves the elements of the employment or agency relationship. That is a valid master or servant or principal and agent relationship which must exist between the Defendant and the wrong doer at the time of the event. On the other hand, the scope of employment (close connection), essentially the wrong doer must have been acting the course of their employment when committing the tort of negligence. This is a highly litigated area of vicarious liability in Kenya involving motor vehicles accidents which are registered in a third parties name but vacant possession moved to the actual owner with all right which accrue under the provisions of Article 40 of the Constitution. I take judicial notice that proving that a Defendant owns a vehicle only creates a *prima facie* presumption that the employee, agent, servant, or driver found with the vehicle at the time of the accident was operating it under the authorization and instructions of the registered owner. However, this presumption is rebuttable, if the registered owner provides satisfactory evidence showing that the driver was neither an employee, agent or servant within the rubric or the thread which governs that scope of vicarious liability. 4. True to the letter of the law *Vicarious liability is legal responsibility imposed on an employer, although he is himself free from blame, for a tort committed by his employee in the course of his employment. Fleming observed that this formula represented "a compromise between two conflicting policies: on the one end, the social interest in furnishing an innocent tort victim with recourse against a financially responsible Defendant; on the other, a hesitation to foist any undue burden on business enterprise: “The Law of Torts, 9th ed (1998), pp 409-410. (per Lord Steyn, Lister v Hesley v Hall [2002] 1 A.C. 215 at paragraph 14.”) The expression vicarious liability signifies the liability which A may incur to C for damage caused to C by the negligence or other tort of B. It is not necessary that A shall have participated in any way in the commission of the tort nor that a duty owed in law by A to C shall have been broken. What is required is that A should stand in a particular relationship to B and that B’s tort should be referable in a certain manner to that relationship. The commonest instance of this in modern law is that liability of a master for the torts of his servants done in the course of their employment. The relationship required is the specific one of master and servant and the tort must be referable to that relationship in the sense that it must have been committed by the servant in the course of his employment.* 5. What is the other threshold issue which the trial Court should have delved into to squarely settle this issue? It is answer in the affirmative whether the driver of the offending motor cycle referred to into the suit was an employee of the Appellant within the definitional terms offered by learned authors Salmond & Heuston on the Law of Tort 19th Edition (1982) P. 510 in which they stated as follows: An employee is any person *employed by another to do work for him on the terms that he, the servant is to be subject to the control and directions of his employer in respect of the manner in which his work is to be done.” It must follow that an employee is one who is bound to obey any lawful orders given by the employer as to the manner in which his work shall be done. The employer retains the power of controlling him in his work, and may direct not only what he shall do, but how he shall do it. Whether the job is assigned daily or by task is of no moment.* 6. Was this offending motor cycle registration No. KMFY 220R which was being driven on 7th of February 2022 along Chugi-Muhudu Marrum road negligently and carelessly controlled and managed by an employee or agent who was under the authority or instructions in the course of employment and terms of the Appellant? The answer is deducible from the dicta in the case of *Saddler v Henlock (1855) 4 E. & B. 570 at 578 per Crompton, J*. in which it was held: *“A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorized by the master, or (2) a wrongful and unauthorized mode of doing some act authorized by the master. (See Ilkiw v Samuels [1963] 1 W.L.R. 991). But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorized, provided they are so connected with acts which he has authorized that they may rightly be regarded as modes – although improper modes-of doing them. In other words, a master is responsible not merely for what he authorizes his servant to do, but also for the way in which he does it. If a servant does negligently that which he was authorized to do carefully, or if he does fraudulently that which he was authorized to do honestly, or if he does mistakenly that which he was authorized to do correctly, his master will answer for that negligence, fraud or mistake. On the other hand, if the unauthorized and wrongful act of the servant is not so connected with the authorized act as to be a mode of doing it, but is an independent act, the master is not responsible: for in such a case the servant is not acting in the course of his employment, but has gone outside of it.” The learned authors of Charlesworth 2 Percy on Negligence stated: “In determining whether or not an employee’s wrongful act is done in the course of his employment, it is necessary that a broad view of all the surrounding circumstances should be taken a whole and not restricted to the particular act which causes the damage. There is no simple test which can be applied to cover every set of circumstances, so that it remains essentially a question of facts for decision in each case.”* 1. Cumulatively dissecting the law bearing in mind the above principles and adopting a broad approach as to the elements of vicarious liability none of them can pin down the Appellant in connection and on account to the circumstances of this accident within the context in which it occurred so that any Court or Tribunal can assign liability. This ground of appeal succeeds in totality. ***(iv) The adverse inference under Section 119 of the Evidence Act and Order 2 Rule 6*** 1. The doctrine on the presumption of evidence (or legal presumptions) dictates that Courts must infer a specific fact from an established basic fact unless it is disproved by contrary evidence. Presumptions are procedural rules of evidence rather than substantive law; they function primarily to shift the burden of producing evidence or the burden of persuasion to the opposing party. For, as I have already indicated, the main errand of the law of evidence is to determine not so much what is admissible in proof, as what is inadmissible. Assuming, as it does, that, in general, what is evidential is receivable, it is occupied in pointing out what part of this mass of matter is excluded. It denies to this excluded part, not the name of evidence, but the name of admissible evidence. Admissibility is determined, first, by relevancy, an affair of logic and not of law; second, but only indirectly, by the law of evidence which, in strictness, only declares whether matter which is logically probative is excluded. 2. The logical inference to be drawn from the set of facts and it is with certainty that the Appellant by documentary evidential material answered in rebuttal the *prima facie* case of its name appearing on the logbook. Therefore, the presumption that he is a registered owner of the offending motor cycle to bear the responsibilities of liability was misguided. Presumption plays an important role in the law of evidence as it helps to establish the truth, shift the burden of production and proof and to expedite the judicial process. 3. Section 119 of the Evidence Act permits a Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events and human conduct. It is an aid to inference from facts already proved. It is not, and cannot be, a substitute for proof, nor a device for transferring to a Defendant a burden which the law places upon a Plaintiff. 4. The burden of proving negligence rested throughout on the 1st Respondent/Plaintiff: Sections 107 and 109 of the Evidence Act. It was for him, and not for the Appellant, to call eye witnesses to the collision if he wished to do so. It is not without irony that the police abstract itself lists two witnesses to the accident, neither of whom the 1st Respondent/Plaintiff called, and that no adverse inference was drawn against him on that account. 5. The Appellant’s pleaded and proved case was that it had no connection whatever with the automobile and no knowledge of the accident until it was served with summons. A party in that position cannot rationally be expected to produce eye witnesses to an event with which it had nothing to do, nor to procure the attendance of the rider or of the 2nd Respondent/Plaintiff, both of whom were strangers to it. To visit such a party with an unfavourable presumption for failing to do the impossible is, in effect, to reverse the onus of proof. The same objection attaches to the criticism that the Appellant ought to have produced a comprehensive motor vehicle inspection report and called the motor vehicle inspector: that burden, if it lay anywhere, lay on the party asserting the manner in which the collision occurred, and in any event no such report was tendered by anyone. Nor, with respect, was Order 2 rule 6 of the Civil Procedure Rules an answer to the Appellant’s evidence. That rule requires a party to deal specifically with allegations of fact and forbids evasive denials. The Appellant did not offend it. It pleaded the sale of the automobile to Robin Afric Limited on 11th January 2022 expressly, at paragraph 7 of its Defence dated 18th August 2022, and its evidence at trial was entirely congruent with that plea. If the doctrine that parties are bound by their pleadings had any operation in this case, it operated against the 1st Respondent/Plaintiff, whose paragraph 4 I have already discussed. The trial Court’s conclusion that it had “no option but to reject DW1’s version” was therefore reached on a wrong principle. ***(v) The authority relied on by the 1st Respondent/Plaintiff*** 1. The 1st Respondent/Plaintiff placed reliance on *Baro Ngo Sevelius Yophen v Jared Ndemo [2020] eKLR* for the proposition that a person driving a motor vehicle owes a duty to look out for other road users, including motor cycle riders. That proposition is unimpeachable, but it does not advance his case against the Appellant. In that appeal the Appellant was himself the driver and the owner of the offending vehicle; the contest was as to how the collision occurred and whether he should have instituted third party proceedings against the motor cyclist. The judgment says nothing about the rebuttal of the presumption under Section 8 of the Traffic Act, and nothing about the vicarious liability of a party who has no nexus at all with the rider. It is distinguishable and of no assistance here. ***(vi) Quantum*** 1. Although my findings on liability dispose of the appeal so far as the Appellant is concerned, ground 29 was argued and I should deal with it, not least because the award stands as against the 2nd Respondent/Plaintiff. 2. The principles are settled on assessment of damages on appeal as it is in the case of *Butt v Khan [1977] KAR 1* it was held that an appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, and that it must be shown that the trial Court proceeded on wrong principles or misapprehended the evidence in some material respect. To like effect is *Kemfro Africa Limited t/a Meru Express Service v A. M. Lubia & Olive Lubia [1987] KLR 30*. 3. The injuries pleaded and proved were tenderness along the left hand and a tender swollen right ankle joint. The Clinical Officer classified the degree of injury as “harm” and the 1st Respondent/Plaintiff was treated as an outpatient and discharged the same day. These are soft tissue injuries of a relatively modest order. The 1st Respondent/Plaintiff had proposed an award of Kshs. 300,000/=. 4. The learned trial Magistrate directed herself on comparable awards – Kshs. 90,000/= in George Mugo (2018) and Kshs. 100,000/= in Ndungu Dennis (2018) – and made allowance for the passage of time and inflationary trends in arriving at Kshs. 130,000/= in January 2025. The award is, in my view, on the generous side; but generosity is not the test. It does not proceed upon any wrong principle, and it is not so inordinately high as to represent an entirely erroneous estimate. I decline to interfere with it. Ground 29 fails. 5. For completeness, I note that in reciting the evidence the trial Court at one point recorded injuries to “the right knee, left hand and dislocation of right leg”, which do not correspond to the pleaded injuries or to the P3 form. When it came to assess damages, however, the Court correctly proceeded on the footing of soft tissue injuries. No prejudice was thereby occasioned. ***(vii) The position of the 2nd Respondent/Plaintiff*** 1. The interlocutory judgment entered against the 2nd Respondent/Plaintiff on 27th October 2022 has never been set aside, and he has not appealed. My findings above do not disturb it; on the contrary, they confirm it. The negligence of the rider of KMFY 220R has been established, and the actual, beneficial and possessory ownership of that machine, together with the employment of and control over its rider, has been shown on the evidence to have vested in the 2nd Respondent/Plaintiff. The judgment of the trial Court therefore stands in full against him. 2. It follows, however, that the declaration that the Defendants are liable “jointly and severally” cannot survive. Joint and several liability presupposes a legal nexus, or concurrent tortious responsibility, between the parties so held. There was none here. To that extent ground 17 also succeeds. ***(viii) Costs*** 1. Costs are in the discretion of the Court under Section 27 of the Civil Procedure Act, Cap 21, but that discretion is judicial and the settled rule is that costs follow the event unless there is good reason to order otherwise. 2. The Appellant has substantially succeeded. I have anxiously considered whether, the 1st Respondent/Plaintiff being an injured litigant of modest means, some other order should be made. I am satisfied it should not. The 1st Respondent/Plaintiff himself pleaded, in the very document by which he commenced the suit, that the Appellant was no more than the registered owner and that actual ownership lay in the 2nd Respondent/Plaintiff. He was served with a Defence disclosing the sale and the identity of the purchaser as early as August 2022. He nonetheless pursued the Appellant to judgment and has resisted this appeal. In those circumstances there is no reason to depart from the ordinary rule. **Disposition** 1. The upshot of all the foregoing is that the appeal is merited so far as it concerns the liability of the Appellant, and unmerited so far as it concerns quantum. I accordingly make the following orders: 2. *The appeal is allowed.* 3. *The judgment delivered on 21st January 2025 and the decree extracted thereon in Vihiga Chief Magistrate’s Civil Suit No. E057 of 2022 are hereby set aside in so far, and only in so far, as they relate to and bind the Appellant, Car & General (Trading) Limited.* 4. *The 1st Respondent/Plaintiff’s suit in Vihiga Chief Magistrate’s Civil Suit No. E057 of 2022 is dismissed as against the Appellant, Car & General (Trading) Limited.* 5. *The finding of liability at 100%, the award of general damages of Kshs. 130,000/=, and the orders as to costs and interest at Court rates from the date of judgment until payment in full, are affirmed and shall stand as against the 2nd Respondent/Plaintiff, Robert Amwai Okillo, alone. The declaration that the Defendants are liable jointly and severally is set aside.* 6. *The Appellant shall have the costs of this appeal and the costs of the suit in the subordinate Court, as against the 1st Respondent/Plaintiff, such costs to be taxed if not agreed.* 7. *The Deputy Registrar shall draw up a decree in these terms, and the file of the subordinate Court shall be remitted to that Court forthwith.* Orders accordingly. **DATED, SIGNED AND DELIVERED AT VIHIGA THIS 9TH DAY OF SEPTEMBER 2026.** **……………………………..………** **R. NYAKUNDI** **JUDGE**