Car & General (Trading) Limited v Silas Andambi & Robert Amwayi Okillo

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **CIVIL APPEAL NO. E010 OF 2025** **CAR & GENERAL (TRADING) LIMITED APPELLANT** **=VERSUS=** **SILAS ANDAMBI 1ST RESPONDENT** **ROBERT AMWAI OKILLO 2ND RESPONDENT** *(Being an appeal from the Judgment and Decree of Hon. J. A. Agonda (Principal Magistrate) delivered on 21st January 2025 in Vihiga Chief Magistrate's Court Civil Suit No. E056 of 2022* **Coram: Before Justice R. Nyakundi** **M/S Ngala Awino & Co. Advocates** **M/S Kabiru & Co. Advocates** **JUDGMENT** ## Introduction 1. This is a first appeal which arises from the judgment and decree of the Vihiga Chief Magistrate's Court (Hon. J. A. Agonda, PM) delivered on 21st January 2025, by which the learned trial Magistrate found the two Defendants jointly and severally liable at 100% for a road traffic accident that occurred on 7th February 2022 and entered judgment in favour of the Plaintiff (now the 1st Respondent) for general damages of Kshs. 250,000/=, together with costs and interest at Court rates. 2. The Appellant, Car & General (Trading) Limited, was the 2nd Defendant in the suit. Aggrieved by that decision, it filed a memorandum of appeal dated 12th February 2025 setting out thirty-one (31) grounds of appeal. The 2nd Respondent, Robert Amwai Okillo, was the 1st Defendant. He neither entered appearance nor defended the suit, and he has not participated in this appeal. 3. Reduced to its essentials, the Appellant's complaint is threefold: first, that the trial Court erred in finding it to be the owner of motorcycle registration number KMFY 220R when the uncontroverted evidence was that it had sold that motorcycle to a third party on 11th January 2022, some four weeks before the accident; secondly, that the trial Court erred in fastening vicarious liability upon it in the absence of any evidence of an employment, servant or agency relationship between it and the rider of the offending motorcycle; and thirdly, that the trial Court failed altogether to appreciate and evaluate the evidence and the pleadings on record. ## The case before the Trial Court 1. By a plaint dated 16th March 2022, the 1st Respondent sued the 2nd Respondent and the Appellant jointly. He described the 1st Defendant as the actual owner of motorcycle registration number KMFY 220R, and the 2nd Defendant (the Appellant herein) as the registered owner of the same motorcycle. Paragraph 4 of the plaint was in the following terms: *“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. It was pleaded that on 7th February 2022, along the Chugi–Muhudu marram road at Chugi area, the 1st Respondent was lawfully aboard motorcycle registration number KMFX 758F when motorcycle registration number KMFY 220R was so negligently, carelessly and recklessly ridden that it lost control and hit motorcycle KMFX 758F, as a consequence of which he sustained serious bodily injuries. Particulars of negligence and of injuries were duly pleaded, and general damages, costs and interest were prayed for. 2. The 1st Defendant neither entered appearance nor filed a defence, and interlocutory judgment was entered against him on 27th October 2022. 3. The Appellant entered appearance and filed a statement of defence dated 18th August 2022 in which it denied being the registered owner of motorcycle registration number KMFY 220R; denied knowledge of the accident, its date, manner and place; denied that the said motorcycle was at the material time being ridden by its rider, agent, servant and/or employee; denied each of the particulars of negligence; and, in the alternative and without prejudice, pleaded that the accident was wholly or substantially caused or contributed to by the negligence of the 1st Respondent and of the rider of motorcycle KMFX 758F. It prayed that the suit be dismissed with costs. No reply to defence was filed. 4. The suit proceeded to full hearing on 12th June 2023, 23rd July 2024 and 3rd October 2024. ## The evidence adduced at the Trial ### *The 1st Respondent 's case* 1. PW1, Silas Andambi, adopted his witness statement and list of documents dated 16th March 2022. He testified that he was involved in the accident of 7th February 2022; that he sustained injuries to the left hand and a dislocation of the right knee joint; that he was treated at Vihiga County Referral Hospital; and that he was issued with a police abstract and a P3 form. He produced, among other documents, a copy of records from the National Transport and Safety Authority (NTSA) showing the Appellant as the registered owner of motorcycle registration number KMFY 220R. Under cross-examination, he stated that motorcycle KMFY 220R caused the accident; that the said motorcycle was operating as a boda boda; and that he had paid Kshs. 100/= as fare. Crucially, it was also his evidence that, as per the police abstract, the owner of the offending motorcycle was one Robert Amwai Okillo, who had physical control of it. 2. PW2, PC Damaris Mutunga, a traffic Police Officer based at Vihiga Police Station, produced the police abstract and testified as to the fact and circumstances of the accident. Her evidence was that motorcycle KMFY 220R collided head-on with motorcycle KMFX 758F; that both motorcycles were insured; and that the matter was under investigation. On cross-examination she testified that, as per the initial report, motorcycle KMFY 220R was ridden by one John Alta and that the same was insured and owned by Robert Amwai Okillo, the 1st Defendant. She testified that, on interviewing the rider, the rider had named his employer as Robert Amwai. She further testified that she had interviewed Robert Amwai, who confirmed that it was he who had given the motorcycle to John Alta, the rider; that Robert Amwai held all the forms of ownership - possession, actual and control; and that the motorcycle was insured under a policy in respect of which the abstract gave particulars. On re-examination she confirmed that the registered owner, as per the search, was the Appellant, and that motorcycle KMFY 220R, ridden by John Alta, was blamed for failing to keep to its proper lane. 3. PW3, Dr. (Mr.) Obadiah Ndege, a Clinical Officer at Vihiga County Referral Hospital, produced the P3 form and treatment notes. He testified that the 1st Respondent sustained injuries to the right knee and a dislocation of the right leg at the knee joint, and that he classified the degree of injury as “harm”. ### *The Appellant's case* 1. DW1, Joseph Mulwa Mwambi, the Appellant's logistics coordinator, adopted his witness statement and produced the Appellant's documents. His evidence was that the Appellant is in the business of wholesale of motorcycles and three-wheeler motor vehicles; that on 11th January 2022 — a date preceding the accident by almost a month the Appellant sold motorcycle registration number KMFY 220R to Robin Afric Limited of P.O. Box 72629–00200 Nairobi; and that in proof of the sale he produced a copy of tax invoice No. DIST350013040, which the purchaser had acknowledged by stamping and dating it. 2. DW1 further testified that the reason the motorcycle stood registered in the Appellant's name was that the Appellant, as an importer and dealer, was under a statutory obligation to register its stock in its own name before sale, and in support of this he produced a notice of the National Transport and Safety Authority dated 7th September 2020, which reads in part: *“That registration of any unit will be as per customs entry. Therefore, the dealer or the importer should apply for the registration under their names and KRA PIN as per declaration of the Custom's Entry.”* 1. It was DW1's further evidence that the Appellant had no connection whatsoever with the persons adversely mentioned in the proceedings, whether as rider, beneficial owner or next of kin, and in proof of that he produced the Appellant's list of employees, in which none of those names appears. He testified that the Appellant does not insure the motorcycles it sells, and that it had not instructed anyone to insure the subject motorcycle. On cross-examination he conceded that the NTSA notice did not itself show that the Appellant had initiated a transfer, and that no application had been made to have the Appellant struck out of the suit. On re-examination he explained the transfer process, namely that upon purchase the dealer feeds the purchaser's and the goods' particulars into the e-TIMS platform, whereupon it falls to the purchaser to log in and complete the transfer. ## The Judgment of the Trial Court 1. The learned trial Magistrate framed five issues: whether the 2nd Defendant was the registered owner of motorcycle KMFY 220R as at 7th February 2022; whether an accident occurred on that day; who was to blame and to what degree; the injuries and quantum; and costs. 2. On the first issue, the trial Court held that the 1st Respondent had ascertained that motorcycle KMFY 220R was owned by the 2nd Defendant, being the registered owner at the time of the accident, relying on the copy of records from the Registrar of Motor Vehicles (PExh. 5) as “fortified” by the police abstract produced by PW2, which the Court understood to indicate the 2nd Defendant as the registered owner. The first issue was answered in the affirmative. 3. On the third issue, the trial Court preferred the 1st Respondent 's version, and in doing so gave three reasons: first, that the Appellant, liability being hotly contested, ought to have produced a comprehensive motor vehicle inspection report and to have called the motor vehicle inspector and the rider of KMFY 220R; secondly, that DW1's evidence, being confined to ownership, ought to have been corroborated by eye witnesses whom the Appellant did not call, and that since parties are bound by their pleadings in terms of Order 2 Rule 6, the Court had “no option but to reject DW1's version”; and thirdly, that the Appellant's failure to call eye witnesses attracted an adverse inference under Section 119 of the Evidence Act. 4. The trial Court then concluded, in the passage now most strongly impugned, that “the 1st Defendant who was the employee of [the] 2nd Defendant ought to have been watchful of other road users” and that “the 2nd Defendant was vicariously liable for his rider's negligent act and having employed [a] careless and unskilled driver.” It found the Defendants jointly and severally liable at 100%. 5. On quantum, the trial Court reviewed comparable awards and assessed general damages at Kshs. 250,000/=. It expressly declined to award special damages on the ground that none had been pleaded, although the decretal orders at the foot of the judgment record special damages of Kshs. 994/= and a grand total of Kshs. 250,994/=. Costs and interest were awarded to the Plaintiff. ## The Appeal and the Submissions of Counsel 1. The memorandum of appeal dated 12th February 2025 sets out thirty-one grounds. Mercifully, Counsel for the Appellant condensed them, and I adopt that consolidation, into whether the trial Magistrate erred in finding the Appellant to be the owner of motorcycle KMFY 220R; whether she erred in finding it vicariously liable; whether she erred in failing to appreciate the evidence adduced; and who should bear the costs. Grounds not argued in the submissions are taken to have been abandoned; in particular, no argument was addressed to me on quantum. 2. The appeal was canvassed by way of written submissions. Mr. Kabiru, for the Appellant, filed submissions dated 12th March 2026 together with a list and bundle of authorities. His argument, compressed, is this. Registration under Section 8 of the Traffic Act, Cap. 403, raises no more than a rebuttable presumption of ownership. That presumption was displaced by the tax invoice evidencing sale to Robin Afric Limited on 11th January 2022; by the NTSA notice explaining why a dealer's stock stands registered in the dealer's name; by the police abstract, which named the 2nd Respondent as both owner and insured; and, most tellingly, by the 1st Respondent 's own plaint and his own witnesses, who placed actual, beneficial and possessory ownership in the 2nd Respondent. Vicarious liability, Counsel submitted, is founded not on ownership but on the delegation of a task or duty, and there was simply no evidence of any employment or agency relationship between the Appellant and the rider. He relied, among many authorities, on *Securicor Kenya Limited v Kyumba Holdings Limited (2005) eKLR, Abson Motors Limited v Tabitha Syombua Mutua & another [2019] eKLR, Car & General Trading Limited v Owino & another (Civil Appeal E098 of 2021) [2023] KEHC 19397 (KLR), Toroitich v Kibe & another (Civil Appeal E124 of 2023) [2024] KEHC 251 (KLR), Nancy Ayemba Ngaira v Abdi Ali (2010) eKLR, Jared Magwaro Bundi & another v Primarosa Flowers Limited [2018] eKLR, Morgan v Launchbury [1972] 2 All ER 606, M.O.M Amin Transporters Ltd & another v Alexander Ndung'u Mbugua & 2 others [2019] eKLR and Statpack Industries Limited v James Mbithi Munyao (2005) eKLR.* 3. Mr. Awino, for the 1st Respondent, filed submissions dated 16th April 2026. He framed a single issue — whether the trial Magistrate erred in entering judgment in favour of the 1st Respondent as against the Appellant and the 2nd Respondent — and answered it in the negative. He submitted that PW2 confirmed on cross-examination that the search disclosed the Appellant as the registered owner; that DW1 admitted the transfer was never completed and that no application had been made to have the Appellant struck out; that the Appellant called no police witness to rebut the 1st Respondent 's case; and that the excerpt at page 4 of the judgment demonstrates that the trial Court did consider the Appellant's evidence and gave reasons for rejecting it. He relied on *Baro Ngo Sevelius Yophen v Jared Ndemo [2020] eKLR* for the proposition that a person driving at the material time owes a duty to look out for other road users, and urged that the appeal be dismissed with costs. 4. I record, in fairness to Counsel, that paragraph 3 of the 1st Respondent 's submissions describe the award as Kshs. 130,000/=. That is plainly a slip; the certified judgment on the record awards Kshs. 250,000/= in general damages. Nothing turns on it. 5. The 2nd Respondent, against whom interlocutory judgment was entered and who has never participated in these proceedings, filed nothing. ## F. The duty of this Court on a first appeal 1. This being a first appeal, my duty is to re-evaluate and re-assess the whole of the evidence on record and to arrive at my own independent conclusions, bearing always in mind that I neither saw nor heard the witnesses testify, and making due allowance for that disadvantage. The principle is settled beyond argument. In *Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123* the former Court of Appeal for Eastern Africa held: *“… this Court is not bound necessarily to accept the findings of fact by the Court below. An appeal to this Court … is by way of retrial and the Court of Appeal is not bound to follow the trial Court's finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”* 1. Equally, an appellate Court will not lightly interfere with the discretion or the findings of the trial Court. As was said in *Mbogo & Another v Shah [1968] EA 93*, and as was reiterated in *Car and General (Trading) Limited v Nyagaka & another (Civil Appeal E150 of 2023) [2025] KEHC 1960 (KLR),* interference is warranted where the decision below is clearly wrong because the Court misdirected itself, or acted on matters on which it should not have acted, or failed to take into consideration matters which it should have taken into consideration, and in so doing arrived at a wrong conclusion. 2. It is with those principles firmly in mind, and not as a licence to substitute my own preferences for those of the trial Court, that I turn to the record. ## Issues for determination 1. Having considered the memorandum of appeal, the record, and the rival submissions, the issues that fall for determination are: 2. Whether the trial Court erred in finding the Appellant to have been the owner of motorcycle registration number KMFY 220R as at 7th February 2022; 3. Whether the trial Court erred in holding the Appellant vicariously liable for the accident; 4. Whether the trial Court properly evaluated the evidence and correctly applied the burden and standard of proof; 5. What orders, including as to the decree against the 2nd Respondent and as to costs, ought to issue. ## Analysis and determination ### *(a) Whether the Appellant was the owner of motorcycle registration number KMFY 220R* 1. The starting point is Section 8 of the Traffic Act, Cap. 403, which 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. The words “unless the contrary is proved” are the whole battleground of this appeal. They make plain that registration is not conclusive; it raises a rebuttable presumption only. The Court of Appeal put it thus in *Joel Muga Opinja v East Africa Sea Food Ltd [2013] eKLR*, and the Court of Appeal of Uganda said the same in *Osapil v Kaddy [2000] 1 EALA 187,* where a registration card or logbook was held to be no more than *prima facie* evidence of title. 2. Why the presumption is rebuttable is not difficult to see. As Ojwang J. (as he then was) observed in *Nancy Ayemba Ngaira v Abdi Ali, Civil Appeal 107 of 2008 [2010] eKLR*: *“In judicial practice ownership of a motor vehicle is not just confined to registration but there are various categories of ownership of a motor vehicle, actual ownership, beneficial ownership and 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.”* 1. The Court of Appeal made the same point in *Jared Magwaro Bundi & another v Primarosa Flowers Limited [2018] eKLR*, holding that the burden is discharged if, on a balance of probabilities, it is shown that as a matter of fact the vehicle had been transferred but not yet registered to a *de facto*, beneficial or possessory owner, such an owner being for practical purposes more relevant than the person in whose name the vehicle is registered. Motor vehicles change hands daily; the register invariably lags behind the transaction. The law recognizes that lag. 2. What then was the evidence before the trial Court on this question? It came from both sides, and, remarkably, it all pointed one way. 3. First, from the Appellant DW1's uncontradicted testimony, supported by tax invoice No. DIST350013040, that motorcycle KMFY 220R was sold and delivered to Robin Afric Limited on 11th January 2022, twenty-seven days before the accident, the invoice bearing the purchaser's acknowledgment by stamp and date. The invoice was produced without objection. It was not challenged as a forgery or an afterthought; no application was made to have it expunged; and no witness was called to gainsay it. 4. Secondly, and again from the Appellant the NTSA notice of 7th September 2020, which supplies the explanation for the Appellant's name appearing on the register at all. A dealer or importer is required to register its stock in its own name as per the customs entry. It follows, as Nyakundi J. observed in *Toroitich v Kibe & another (Civil Appeal E124 of 2023) [2024] KEHC 251 (KLR),* that a dealer in motor vehicles “is required to have motorcycles and motor vehicles registered in their name but many at times they might not be the beneficial owners.” That is precisely the position of a wholesaler such as the Appellant. Its name on the register is, in a real sense, a compliance artefact rather than an assertion of beneficial title. 5. Thirdly, and this is what, to my mind, disposes of the issue, from the 1st Respondent himself. The police abstract which the 1st Respondent produced and relied upon named Robert Amwai Okillo as the owner and the insured of motorcycle KMFY 220R. PW1 said so in terms. PW2, the Investigating Officer, said so in terms, adding that she had interviewed Okillo, who confirmed that he had given the motorcycle to the rider, and that Okillo held “all the forms of ownership.” Indeed, the 1st Respondent 's own submissions before me record that PW2 “confirmed that the beneficial and registered owners of motor cycle registration number KMFY 220R were the 2nd Respondent and the Appellant respectively.” That is a concession of beneficial ownership in the 2nd Respondent, made in this Court. 6. Fourthly, the plaint itself. Paragraph 4 pleaded that the 1st Defendant was the actual owner and the 2nd Defendant merely the registered owner. Parties are bound by their pleadings. The Supreme Court said so *in Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR*, and Chererè J. applied the principle in *Mohamed Guyo Boru v Richard Mwilaria Aritho [2022] eKLR*. The paradox of the judgment below is that the trial Magistrate invoked the doctrine that parties are bound by their pleadings in order to reject the Appellant's evidence, while overlooking that it was the Plaintiff's own pleading which located actual ownership in the 1st Defendant. 7. Against all of this, what was there to support the finding that the Appellant was the owner? Only the copy of records from NTSA. But a search record is the very thing that Section 8 makes rebuttable, and a search record standing alone has repeatedly been held insufficient. In *Samuel Mukunya Kamunge v John Mwangi Kamuru*, Civil Appeal No. 34 of 2002, Okwengu J. held that the trial Magistrate was wrong in holding that only a search certificate could prove ownership, and that a police abstract showing the Respondent as owner was proof of ownership. In *Muhambi Koja v Said Mbwana Abdi [2015] eKLR* it was held that a police abstract report or any other form of evidence will be proof of ownership and will displace the registration book where it is demonstrated that the person named in the register has since transferred and divested himself of ownership. In addition, in *Car & General Trading Limited v Owino & another* (supra), on facts strikingly similar to these, Aburili J. held that where the police abstract discloses the insurable interest in another, and the Appellant proved a sale before the accident, the presumption of ownership is rebutted. 8. The learned trial Magistrate reasoned that the police abstract “fortified” the copy of records in showing the 2nd Defendant as registered owner. With respect, that is not what the abstract says. The abstract named Robert Amwai Okillo as owner and as the insured. Both of the 1st Respondent's own witnesses said so. This was a misapprehension of a central piece of documentary evidence, and it infected the whole of the finding on ownership. 9. On the other hand, it cannot be said that the insurance position assists the 1st Respondent. It is trite that a contract of insurance requires an insurable interest, that is to say a pecuniary or proprietary interest in the subject matter (see Lion of *Kenya Insurance Company Limited v Edwin Kibuba Kihonge [2018] eKLR*). The abstract discloses the motorcycle as insured by the 2nd Respondent. As was observed in *Abson Motors Limited v Tabitha Syombua Mutua & another [2019] eKLR*, ordinarily it is the insured owner's name that appears on the police abstract after an accident. Here the Appellant's name does not appear in that capacity at all. 10. I have not overlooked the two matters pressed by Mr. Awino. The first is DW1's concession that the transfer was never completed at NTSA. The second is that no application was made to have the Appellant struck out of the suit. Neither carries the day. As to the first, the incompleteness of the transfer is precisely the situation which Section 8 of the Traffic Act, and the authorities on *de facto* ownership, are designed to address; if a completed transfer were required, the words “unless the contrary is proved” would be otiose. Section 9(2) of the Traffic Act, considered in *Muhambi Koja* (supra), likewise contemplates the interval between transfer and registration, during which the new owner is for all intents and purposes to be deemed the owner. As to the second, the failure to apply for striking out is a matter of procedural strategy; it neither creates ownership nor relieves the Plaintiff of the burden of proving it. A Defendant is entitled to meet the case at trial rather than by interlocutory application. 11. There is one loose thread, and I should deal with it candidly. The Appellant proved a sale to Robin Afric Limited, yet the person found in possession, control and insurance of the motorcycle a month later was the 2nd Respondent, and how the motorcycle passed from one to the other was never explained. That gap, however, is not the Appellants to fill. The question for the trial Court was not who exactly stood between Robin Afric Limited and the 2nd Respondent, but whether the Appellant had ceased to be the owner in any sense that matters in law. On the evidence — its own, and, more importantly, the 1st Respondent's — it had. The 1st Respondent pleaded, testified and now submits that the 2nd Respondent was the actual and beneficial owner. He cannot simultaneously ask the Court to hold the Appellant to be the owner. 12. I therefore find, as I am obliged on a first appeal to find for myself, that the presumption raised by Section 8 of the Traffic Act was comprehensively rebutted, and that as at 7th February 2022 the Appellant was no more than a paper owner of motorcycle registration number KMFY 220R. The first ground of appeal succeeds. ### *(b) Whether the Appellant was vicariously liable* 1. Strictly, the finding I have just made disposes of the appeal. However, because the trial Court's conclusion on vicarious liability was expressed as an independent holding, and because it rests on a misreading of the evidence which ought not to pass without comment, I address it. 2. Vicarious liability is not pegged on ownership. It is pegged on relationship. In *HCM Anyanzwa & 2 Others v Luigi De Casper & Another [1981] KLR 10,* affirmed in M*.O.M Amin Transporters Ltd & Another v Alexander Ndung'u Mbugua & 2 others [2019] eKLR*, it was held that “vicarious liability depends not on ownership but on the delegation of tasks or duty.” In *John Nderi Wamugi v Rubesh Okumu Otiagala & 2 Others*, Kisumu CA 24 of 2015, the Court put it as “employer/employee or agent/principal relationship with particular emphasis on who employed and controlled the tortfeasor.” And in the locus classicus of *Morgan v Launchbury [1972] 2 All ER 606*, cited with approval in *General Motors East Africa Limited v Eunice Alila Ndeswa & Another (2015) eKLR*, it was said that to fix liability on the owner of a car for the negligence of a driver it is necessary to show that the driver was using the car at the owner's request, express or implied, or on his instructions, and was doing so in the performance of a task or duty thereby delegated to him. 3. Securicor *Kenya Limited v Kyumba Holdings Limited (2005) eKLR* is directly in point: *“Moreover, which we do not consider to be the position, [if] the Appellant was still owner by way of log book being in its name, such ownership is not sufficient to create vicarious liability for the negligence of everyone who happened to drive it …”* 1. The burden of establishing that relationship lay squarely on the 1st Respondent. He who alleges must prove: Sections 107, 108 and 109 of the Evidence Act, Cap. 80; *Statpack Industries Limited v James Mbithi Munyao (2005) eKLR; M'Bita Ntiro v Mbae Mwirichia & Another [2018] eKLR*. He did not discharge it. Not a single witness said that the rider of KMFY 220R was an employee, servant or agent of the Appellant, or that he was riding it at the Appellant's request or on its instructions. On the contrary, PW2 testified that the rider named his employer as Robert Amwai, and that Robert Amwai confirmed having given him the motorcycle. The Appellant, for its part, produced a list of its employees in which neither the rider nor the 2nd Respondent appears. 2. It is against that record that one must read the trial Court's finding that “the 1st Defendant who was the employee of [the] 2nd Defendant ought to have been watchful of other road users” and that the Appellant was liable “having employed [a] careless and unskilled driver.” The judgment attributes to DW1 an averment that “Robert Amwai Okillo and Brian were employees as per list of employees ‘DExh.2’.” That is the exact opposite of what DW1 said and of the purpose for which the exhibit was produced: the list was tendered to demonstrate that those persons were not the Appellant's employees. A finding of vicarious liability founded upon a document which proves the converse of what it is said to prove cannot stand. It is a misdirection of the clearest kind, and it goes to the root of the decision. 3. I should add that no alternative basis of liability was pleaded or proved. The 1st Respondent did not plead, for instance, that the Appellant had put the motorcycle into the possession of a person it knew or ought to have known would use it negligently — the species of liability alluded to in *M.O.M Amin Transporters* (supra). A Court may not frame for a party an issue that does not arise on the pleadings. The Appellant, having sold and delivered the motorcycle, was thereafter a stranger to it, owing the 1st Respondent no relevant duty in respect of its use. As was held in *Kiema Mutuku v Kenya Cargo Hauling Services Ltd (1991) 2 KAR 258*, there is as yet no liability without fault in the legal system in Kenya, and a Plaintiff must prove some negligence against the Defendant where the claim is founded on negligence. 4. *Baro Ngo Sevelius Yophen v Jared Ndemo [2020] eKLR*, upon which the 1st Respondent placed his sole reliance, does not assist him. That was a case about an Appellant who was himself driving the offending motor vehicle at the material time; the passage relied upon concerns the duty of a driver on the road to keep a lookout for other road users. It says nothing about the liability of a bare registered owner who was neither present, in possession, nor in any relationship with the rider. It is distinguishable on its facts and on the point of law it decides. 5. The second ground of appeal accordingly also succeeds. ### *(c) Whether the trial Court properly evaluated the evidence and applied the burden of proof* 1. Mr. Awino is right that a trial Court is entitled to reject a witness's evidence, and that giving reasons for doing so is the hallmark of a considered judgment. The difficulty here is not the absence of reasons but the character of them. 2. The three reasons given for rejecting DW1's evidence were, in substance, that the Appellant did not call the rider, the eye witnesses or a motor vehicle inspector, and did not produce an inspection report. With respect, that inverts the burden of proof. The legal burden of proving the case pleaded - including ownership, the relationship founding vicarious liability, and negligence - rested on the Plaintiff throughout and never shifted: Sections 107 to 109 of the Evidence Act; Ahmed Mohammed Noor v Abdi Aziz Osman (2019) eKLR, where it was held that the legal burden is static and rests on the claimant throughout the trial, only the evidential burden shifting according to the evidence adduced; and *Alice Wanjiru Ruhiu v Messiac Assembly of Yahweh [2021] eKLR.* A Defendant who has adduced credible, documentary and unchallenged evidence that it sold the vehicle and had no relationship with the rider is not to be defeated for failing to call witnesses whom the Plaintiff himself never called. 3. Nor could Section 119 of the Evidence Act supply what was missing. The presumption there permitted is an inference of the existence of facts which the Court thinks likely to have happened, having regard to the common course of natural events and human conduct. It is a tool of inference, not an engine for reversing the onus. An adverse inference from a Defendant's failure to call a witness cannot be used to prove an element of the Plaintiff's case on which the Plaintiff has led no evidence at all. 4. The invocation of Order 2 Rule 6 was equally misplaced. I note in passing that the rule is one of the Civil Procedure Rules and not, as the judgment records, of the Civil Procedure Act. More substantively, the principle that parties are bound by their pleadings was deployed against the Appellant, whose defence dated 18th August 2022 had denied ownership, denied knowledge of the accident, and denied that the rider was its rider, servant, agent or employee. DW1's evidence was directed to precisely those denials and was consistent with them. If anything, as I have already observed, the principle told against the 1st Respondent, whose plaint located actual ownership in the 1st Defendant. 5. There is a further indication that the evidence did not receive the attention it deserved. At page 1 of the judgment the trial Court records that “[t]he Defendant participated in these proceedings but did not call any witness”, only to summarize DW1's testimony at page 2 and to weigh it at page 4. Similarly, the judgment records DW1 as having said that the motorcycle was sold “to the 1st Defendant”, whereas his consistent evidence, supported by the invoice, was that it was sold to Robin Afric Limited. Individually these might be dismissed as slips of the pen. Cumulatively, and taken with the misreading of the police abstract and of the list of employees, they persuade me that the trial Court did not bring to the Appellant's evidence the evaluation the law requires. 6. The third ground of appeal therefore also succeeds, so far as it concerns the case against the Appellant. ### *(d) The position of the 2nd Respondent, and quantum* 1. Success for the Appellant does not mean that the 1st Respondent's suit fails altogether. It is important to be clear about what this judgment does not decide. 2. First, the fact of the accident of 7th February 2022 was never in issue; both PW1 and PW2 spoke to it and the police abstract confirmed it. Secondly, the finding that the rider of motorcycle KMFY 220R was to blame for it - for riding at a high speed, losing control, failing to keep to his lane and colliding head-on with motorcycle KMFX 758F - was supported by the evidence of PW1 and PW2 and by the police abstract, and was not displaced by any evidence to the contrary. The Appellant, in the nature of its defence, was in no position to controvert it. I see no basis for disturbing that finding, and it is not necessary to do so in order to dispose of this appeal. Thirdly, the 2nd Respondent, who was the actual, beneficial and possessory owner, who insured the motorcycle, and who by PW2's evidence gave it to the rider, suffered interlocutory judgment on 27th October 2022 and has never sought to set it aside. The judgment against him stands on its own footing. 3. I record for completeness the discrepancy in the evidence as to whether the 1st Respondent was a pillion passenger aboard motorcycle KMFX 758F, as pleaded and as he testified, or its rider, as PW2 and parts of the judgment suggest. On either version he was not the rider of the offending motorcycle and no contributory negligence was established against him, so nothing turns on it for present purposes. 4. As to quantum, no submissions were addressed to me on the award of Kshs. 250,000/= as general damages, and the grounds touching on it must be taken as abandoned. In any event, applying *Butt v Khan (1977) KAR 1,* I could not say that the award is so inordinately high as to represent an entirely erroneous estimate for a dislocation of the right knee joint with soft tissue injuries, having regard to the comparable awards the trial Court considered. It is not disturbed as against the 2nd Respondent. 5. I do note the internal inconsistency by which the trial Court, having expressly held that special damages were neither pleaded nor provable, nonetheless decreed Kshs. 994/= under that head. Since the decree in that respect now runs against the 2nd Respondent alone, who has not appealed, and since no cross-appeal was filed, it is not for me to interfere with it on this appeal; any correction of what appears to be an accidental slip lies in the trial Court under section 99 of the Civil Procedure Act. ### *(e) Costs* 1. Costs are in the discretion of the Court under section 27 of the Civil Procedure Act, and the ordinary rule is that they follow the event and are awarded to compensate, not to punish: *Cecilia Karuru Ngayu v Barclays Bank of Kenya (2016) eKLR*. The discretion is, however, judicial, and the rule yields where there is good reason. 2. There is good reason here. The 1st Respondent is a young man who was injured through no fault of his own. He sued the Appellant because an official search at the National Transport and Safety Authority named the Appellant as the owner of the motorcycle that injured him. He was entitled to act on that official record. That the record said what it said was a state of affairs of the Appellant's own making: it sold the motorcycle on 11th January 2022 but the register still bore its name on 7th February 2022, and, as DW1 conceded, there was nothing before the Court to show that the Appellant had taken any step of its own to ensure the change was reflected. A dealer who leaves the public register misleading cannot complain too loudly when a member of the public is misled by it. 3. In those circumstances, while the Appellant must have its judgment, I do not think it should have its costs from the 1st Respondent. I shall order that each party bears its own costs of this appeal and of the suit in the lower Court as between the Appellant and the 1st Respondent. The 1st Respondent's costs in the lower Court as against the 2nd Respondent are unaffected. ## Disposition 1. For all the foregoing reasons, the appeal succeeds. The final orders are: 1. *The appeal is allowed.* 2. *The judgment and decree of the Vihiga Chief Magistrate's Court delivered on 21st January 2025 in Civil Suit No. E056 of 2022 are set aside insofar as they are entered against the Appellant, Car & General (Trading) Limited (the 2nd Defendant in the lower Court).* 3. *The suit in Vihiga Chief Magistrate's Court Civil Suit No. E056 of 2022 is dismissed as against the 2nd Defendant, Car & General (Trading) Limited.* 4. *The judgment and decree of 21st January 2025 are otherwise affirmed and shall be read and enforced as against the 1st Defendant, Robert Amwai Okillo (the 2nd Respondent herein), alone, namely liability at 100% and general damages of Kshs. 250,000/=, together with costs of the suit and interest thereon at Court rates from the date of the judgment until payment in full.* 5. *Any decretal sum paid, deposited or secured by the Appellant in satisfaction of the decree of 21st January 2025 shall be refunded to or released to the Appellant within thirty (30) days of the date hereof.* 6. *Each party shall bear its own costs of this appeal and of the proceedings in the lower Court as between the Appellant and the 1st Respondent.* Orders accordingly. **DELIVERED, DATED AND SIGNED AT VIHIGA THIS 9TH DAY OF SEPTEMBER 2026.** **………………………………………** **R. NYAKUNDI** **JUDGE**