[2023] KEHC 25321 (KLR)

Car & General (Trading) Limited v Ngui & another (Civil Appeal E067 of 2021) [2023] KEHC 25321 (KLR) (6 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25321 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E067 of 2021

DKN Magare, J

November 6, 2023

Between

Car & General (Trading) Limited

Appellant

and

Fedelis Susan Ngui

1st Respondent

Stephen Matiko Mwita

2nd Respondent

Judgment

1. Some matters require a very rare sense of judgment. When I was growing up it was called “common sense”. With time this sense may soon be administered intravenously. The 1st Respondent filed suit against the Defendants who are the beneficial owners and Registered Owners.

2. This being a first appeal, this Court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.

3. In the case of Mbogo andanother v Shah [1968] EA 93 where the Court stated:“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

4. The duty of the first appellate Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus Classicus case of Selle and another v Associated Motor Board Company andothers [1968] EA 123, where the law looks in their usual gusto, held by as follows; -“.. 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 re-trial 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.”

5. The Court is to bear in in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them.

6. In the case of Peters v Sunday Post Limited [1958] EA 424, court therein rendered itself as follows:-“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”

7. The 2nd Respondent did not enter appearance. Interlocutory Judgement was entered. As the name of the second Defendant suggests it is a trading name. The Respondent is said to have been hit by a Motor Vehicle Registration No. KTWA 788 S along Mshomoroni Road.

8The 1st Respondent was said to be crossing the road. The Registration number indicates that the same related to a three wheeler, Tuk Tuk. The Police Abstract indicated that the owner was the 2nd Respondent and this was not challenged. The 1st Respondent also pleaded so.

9. the burden of proof was on whosever alleged. this is provided for under sections 107 – 109 of the Evidence Act. The same provides as doth: -107. Burden of proof(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.108. Incidence of burdenThe burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.109. Proof of particular factThe burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

10. The burden of proof of anything is on the party alleging. The said three wheeler vehicle was reportedly insured by Xplico Insurance Co. Ltd. A search indicated that at 11/12/2013 the Registered owner was Car and General Trading Ltd. There was need to proof that the said vehicle belonged to the Appellant. in the case of Securicor Kenya Ltd v Kyumba Holdings Ltd [2005] eKLR, the court of Appeal stated as doth: -“Though he was given a duly signed transfer form and a logbook, the transfer in his favour was never registered. However, what is known is that the motor vehicle was eventually converted into a matatu and was being used as such at the time of the accident. It was apparent, therefore, that though the appellant remained the registered owner of the motor vehicle its actual possession had passed to a third party. In view of this finding, the trial Judge cannot be right under section 8 of the Traffic Act when she states that the true owner of the motor vehicle is the appellant.That section reads as follows:-“The person whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle.”We think that the appellant had, by the evidence it led, proved on a balance of probability, that it was not the owner of KWJ 816 at the time the accident occurred since it had sold it. Our holding finds support in the decision in Osapil v Kaddy [2000] 1 EALA 187 in which it was held by the Court of Appeal of Uganda that a registration card or logbook was only prima facie evidence of title to a motor vehicle and the person whose name the vehicle was registered was presumed to be the owner thereof unless proved otherwise. The appellant had, indeed, proved otherwise.”

11. The matter proceeded exparte. the 1st respondent was duty bound to proof the allegations in the Plaint. Even in cases of formal proof, the 1st Respondent was under duty to proof the issue of ownership. In the case of Rosaline Mary Kahumbu v National Bank of Kenya Ltd [2014] eKLR, Justice J. B. Havelock, as then he was stated as doth: -“in present circumstances however, the Defence was struck out and thus the Defendant does not have the opportunity or privilege to present its evidence and argument. In light of the absence of a Defence on the file, it follows logically, that the matter would proceed to formal proof. What therefore is hearing by formal proof? In the case of Samson S. Maitai & another v African Safari Club Ltd & another [2010] eKLR, Emukule, J observed thus;“……. I have not seen judicial definition of the phrase "Formal Proof". "Formal" in its ordinary Dictionary meanings - refers to being "methodical" according to rules (of evidence). On the other hand according to Halsbury's Laws of England, Vol. 15, para, 260, "proof" is that which leads to a conviction as to the truth or falsity of alleged facts which are the subject of inquiry. Proof refers to evidence which satisfies the court as to the truth or falsity of a fact. Generally, as we well know, the burden of proof lies on the party who asserts the truth of the issue in dispute. If that party adduces sufficient evidence to raise a presumption that what is claimed is true, the burden passes to the other party who will fail unless sufficient evidence is adduced to rebut the presumption.…..The Court considering a full hearing, to determine the matter based on the evidence that is presented before it by parties. In contrast, at a formal proof hearing, if the party with the onus of adducing evidence fails to satisfy the truth threshold, the matter would stand to be dismissed on the basis that it was unmeritorious and did not raise sufficient proof of any issues of fact or law. It would be heard and determined on its meri.”

12. There is a stark difference between the police abstract and the search. However, I note that as at the time of delivery of the judgment there was an Application on record. It was neither allowed no dismissed. The court ought to have dealt with it one way or another. The court had also ordered that the 1st Defendant be served. I cannot trace the affidavit of service.

13. It is thus my considered view that the judgment was premature. In the case of D.T. Dobie & Company [Kenya] Ltd v. Muchiri [1982] KLR 1. Madan J.A. (as he then was) said:-“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.”

14. It is not good to drive a party away from a seat of justice. I do not find the judgment sustainable. It is a poisoned tree and a fruit of lapse of procedure. The Respondent cannot obtain benefit from a poisoned tree. in the case of Benjamin Munywoki Musau v Daniel Mutua Muoki & 2 others [2013] eKLR, Justice A. Mabeya stated as doth: -“13. In this regard, I am satisfied that whilst the petitioner has a genuine Complaint, he did not lodge his complaint in the proper manner. He should have dealt with the Returning officer for Mwala Constituency first, pursue his claim with the 3rd Respondent by way of an appeal before coming to this court. Whilst I am in agreement with the petitioner regarding the rotten nature of the Certificate of Nomination granted to the 1st Respondent by the 3rd Respondent (the certificate by the 2nd Respondent having been validly nullified by the Political Parties Tribunal), my hands are tied. I cannot pluck the fruits of the Poisonous tree as the petitioner did not approach this court through the front door”.

15. In the case of Msagha v Chief Justice & 7others Nairobi HCMCA no. 1062 of 2004 (Lessit, Wendo & Emukule, JJ on 3/11/06) (HCK) [2006] 2 KLR 553, the court stated as doth:“The Court observes firstly that the rules of natural justice “audi alteram partem” hear the other party, and no man/woman may be condemned unheard are deeply rooted in the English common law and have been transplanted by reason of colonialisation of the globe during the hey-days we of the British Empire. An essential requirement for the performance of any judicial or quasi-judicial function is that the decision makers observe the principles of natural justice. A decision is unfair if the decision-maker deprives himself of the views of the person who will be affected by the decision. If indeed the principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at in the absence of the departure from essential principle of justice. The decision must be declared to be no decision…It is paramount at this juncture that this court establishes the ingredients and/or components of natural justice. The principles of natural justice concern procedural fairness and ensure a fair decision is reached by an objective decision maker. Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process. The ingredients of fairness or natural justice that must guide all administrative decisions are, firstly, that a person must be allowed an adequate opportunity to present their case where certain interests and rights may be adversely affected by a decision-maker; secondly, that no one ought to be judge in his or her case and this is the requirement that the deciding authority must be unbiased when according the hearing or making the decision; and thirdly, that an administrative decision must be based upon logical proof or evidence material.

16. I have seen the parties’ submissions but they go into the merit of the case. given the turn of events, it is fair and just that should not make evidential decisions. The judgment must give way. I will not deal with merits as the matter is to be reheard. I have read the appeal and had a very good sense of what ought to be done. In order to avoid any embarrassment, I shall not regurgitate the same herein. however, I confirm that they are well written save for occasions of verbosity and lack of conciseness.

17. In the circumstances the appeal is allowed. Nevertheless, given that the Respondents did not poison the tree, each party will bear their own costs.

Determination 18. The Court therefore makes the following orders: -a.The judgment entered on 15/4/2021 is premature and untenable as the Appellant and the 1st Defendant were not heard.b.The entire Judgment is set aside. In lieu thereof, I direct that the matter be heard afresh before another Magistrate other than Maureen Nabibya. For avoidance of doubt this matter shall be heard denovo.c.The Application dated 8/4/2021 is thus spent.d.The right to be heard cannot be derogated without sufficient reasons.e.Each party to bear its costs.f.File is closed.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 6TH DAY OF NOVEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:Kazungu for the AppellantJuaje for the RespondentCourt Assistant - Brian