[2023] KEHC 19397 (KLR)

Car & General Trading Limited v Owino & another (Civil Appeal E098 of 2021) [2023] KEHC 19397 (KLR) (29 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19397 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal E098 of 2021

RE Aburili, J

June 29, 2023

Between

Car & General Trading Limited

Appellant

and

Irine Amondi Owino

1st Respondent

Joakim Odhiambo Aloo

2nd Respondent

(An appeal arising out of the judgement and decree of the Honourable W.K. Okunya in the Chief Magistrate’s Court at Kisumu delivered on the 4th August 2021 in Kisumu CMCC No. 63 of 2020)

Judgment

Introduction 1. The 1st respondent Irine Amondi Owino instituted suit against the appellant and 2nd respondent seeking general damages as well as special damages and costs of the suit for injuries sustained following a road traffic accident that occurred on the 24. 09. 2019 when she was hit while walking, by a Tuk-Tuk driven by the 2nd respondent and owned by the appellant herein.

2. At the end of the trial, the trial court found the appellant Car & General Trading Limited 100% vicariously liable for the accident and proceeded to award the 1st respondent general damages of Kshs. 500,000 and special damages of Kshs. 18,450.

3. Aggrieved by the said decision, the Appellant instituted this appeal vide a memorandum of appeal dated 12th August 2021 and filed on the 17th August 2021 setting out 27-twenty-seven grounds of appeal contained on the face of the memorandum that can be summarized as follows:a.The learned trial magistrate erred in law and fact in finding that the appellant was the beneficial owner of the three-wheeler motor vehicle (Tuk-tuk) registration number KTWB 266M Piaggio that was alleged to have caused the accident.b.The learned trial magistrate erred in law and fact in finding the appellant 100% vicariously liable for causing the alleged accident.c.The learned trial magistrate erred in law and fact by entering judgement against the appellant for a sum that was astronomically high and excessive and would cause financial strain to the appellant’s business to the detriment of its employees.

4. The appeal was canvassed by way of written submissions.

The Appellant’s Submissions 5. It was submitted that the trial magistrate failed to appreciate the evidence of the appellant with regard to the sale of the three-wheeler Tuk-Tuk to Davis Ouma Oselo prior to the date of the said accident and that the appellant was only a paper owner of the said three-wheeler tuk tuk as was held in the case of Gichira Peter V Lucy Wambura Ngaku & Another (2021) eKLR.

6. It was further submitted that the trial magistrate ignored evidence adduced by the appellant that the three-wheeler tuk-tuk was no longer in the appellant’s possession as was similarly held in the case of Abson Motors Limited v Tabitha Syombua Mutua & Another [2019] eKLR and the case of Anthony Kuria Wangari v Guardian Bank Limited [2021] eKLR where in both instances the court recognised the presumption of ownership of a vehicle under Section 8 of Traffic Act.

7. The appellant submitted that there was an absolute cash sale of the three-wheeler as was evidenced by the tax invoice adduced by the appellants and thus the appellant was neither the actual owner, beneficial owner nor possessory owner of the three- wheeler motor vehicle but that the said ownership vested in the 2nd respondent. Reliance was placed on the case of Nancy Ayemba Ngaira v Abdi Ali (2010) eKLR, Wellington Nganga Muthiora v Akamba Public Road & Another [2010] eKLR.

8. It was further submitted that the appellant never directed or delegated work or gave instructions to the driver of the three- wheeler tuk tuk to act on its behalf and further that the 1st respondent failed to adduce any evidence to show that the driver of the tuk-tuk was driving under the instructions and/or authority of the appellant.

9. The appellant submitted that for liability to be apportioned upon an individual, it was important to establish an agency relationship as was held in the case of John Nderi Wamugi v Rubesh Okumu Otiagala & 2 Others Kisumu CA 24 of 2015. It was further submitted that the trial magistrate wrongly relied on the motor vehicle search records to apportion liability which record did not mean that the appellant was the owner in possession or that it had instructed the 2nd respondent to drive the said tuk tuk.

10. It was submitted that no evidence was adduced by the 1st respondent to show that the appellant was in any way liable for the accident. The appellant further submitted that the 1st respondent ought to bear the costs of the suit both at the trial court and costs of the instant appeal.

The 1st Respondent’s Submissions 11. It was submitted that the burden of proof lay with the appellant to show that they were not the owners of the motor vehicle and in denying ownership of the said motor vehicle, the appellant was bound to provide evidence on a balance of probabilities since the 1st respondent adequately furnished the court with sufficient evidence from the Registrar of Motor Vehicles that showed the appellant as the registered owner of the suit motor vehicle. The 1st respondent thus submitted that the appellant failed to discharge its duty of proof and thus the said ground must fail.

12. On vicarious liability, it was submitted that having shown that the appellant was the lawful registered owner of the suit motor vehicle, there was an implied agency relationship between the driver of the suit motor vehicle and the appellant notwithstanding that the driver might have been acting for his own benefit.

13. On damages, the 1st respondent submitted that they were proportional and in accordance with past decisions and the injuries sustained by the 1st respondent.

14. It was submitted that the appellant ought to pay for costs of the suit in line with the provisions of section 27 of the Civil Procedure Act. The 2nd respondent never participated in this appeal despite service upon them by the appellant.

Analysis and Determination 15. I have considered the grounds of appeal and submissions by both counsel for the parties. Section 78 of the Civil Procedure Act sets out the role of the first appellate court which role has been appreciated via judicial pronouncements over time. The duty of the first appellate court is to re-evaluate the evidence in the subordinate court both on points of law and facts and come up with its findings and conclusions as was held by the Court of Appeal for East Africa in Peters v Sunday Post Limited [1958] EA 424 and reiterated by the Court of Appeal in several cases including the case of Gitobu Imanyara & 2 others v Attorney General [2016] eKLR. I will reevaluate the vidence adduced before the trial court as I determine the issues below.

16. The issues for determination before this court are as follows:i.Who was the owner of the three-wheeler motor vehicle (tuk-tuk) registration number KTWB 266M Piaggio that was alleged to have caused the accident.ii.Whether the learned trial magistrate erred in law and fact in finding the appellant 100% vicariously liable for causing the alleged accident.iii.Whether the learned trial magistrate erred in law and fact by entering judgement against the appellant for a sum that was astronomically high and excessive

i. Who was the owner of the three-wheeler motor vehicle (TUK-TUK) registration number KTWB 266M PIAGGIO that was alleged to have caused the accident? 17. It was the 1st respondent’s case that the subject motor vehicle belonged to the appellant as evidenced by a copy of a search from the Registrar of Motor Vehicles that showed the appellant as the registered owner of the suit motor vehicle. In response, the appellant pleaded and submitted before the trial court and this court that it had sold the suit motor vehicle to one Davis Ouma Oselu of P.O. Box 555 – 40100 Kisumu prior to the date of the accident. In support of their contention, the appellant produced a tax invoice dated 20. 01. 2017 showing that one Davis Ouma had ordered the suit motor vehicle. The invoice was signed as received by the said Davis Ouma.

18. DW1 Joseph Mulwa Mwambi testified in re-examination that the only reason the suit vehicle was registered in the appellant’s name was because it was mandatory for any importer who imports a tuk-tuk to have it registered under the importer’s name to enable it transact business.

19. The question is whether the tax invoice produced by the appellant was proof of sale of the suit motor vehicle. In the case of Great Lakes Transport Co (U) Ltd vs Kenya Revenue Authority (2009) eKLR 720, on the production of proforma invoices, the Court of Appeal stated thus:“What we mean is that, in case the goods for which an invoice is issued have been paid for, one would normally expect endorsements such as the word” paid” on the invoice and that would turn the status of the invoice into a receipt. Otherwise, in our minds, a proforma invoice is given in respect of an advice sought from a supplier as to what the cost of goods wanted would be, i.e. quotation given on enquiry as to the price of the goods sought and an invoice is given in cases where an order for supply of goods has been made but payment is not yet made. In either case none of the two documents would amount to a receipt.”

20. The Court of Appeal similarly in the case of Total (Kenya) Limited Formally Caltex Oil (Kenya) Limited v Janevams Limited [2015] eKLR where the respondent produced proforma invoices in support of the claims for retained petrol station equipment, stated:“A proforma invoice is considered a commitment to purchase goods at a specified price. It is not a receipt, and as such cannot attest to the existence of or the acquisition of goods. We consider that a proforma invoice was not satisfactory proof of the respondent’s loss, or the replacement value of the respondent’s equipment, and the learned judge misdirected himself in finding that the proforma invoices were sufficient proof of special damages for the respondent’s equipment supposedly withheld by the appellant.”

21. The police abstract adduced by the 1st respondent in support of her case provided the 2nd respondent as the owner of the suit motor vehicle three-wheeler tuk tuk. The said abstract detailed the insurance details and in essence, provided evidence of insurable interest for the motor vehicle as belonging to the 2nd respondent herein.

22. It is trite law that the ownership of a motor-vehicle is to be proved by the registration of a person as the owner of the motor-vehicle, unless proved otherwise. Section 8 of the Traffic Act 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.” (emphasis added).

23. This section has been interpreted to mean that the registration of the motor-vehicle is not conclusive proof of ownership. In the case of Osapil vs Kaddy [2000] 1 EALA 187 the Court of Appeal of Uganda held that a registration card or logbook was only prima-facie evidence of title to a motor vehicle. The person in whose name the vehicle was registered was presumed to be the owner thereof unless proved otherwise.

24. The Court of Appeal adopted the interpretation above in the case of Securicor Kenya Ltd v Kyumba Holdings Civil Appeal No. 73 of 2002 (Tunoi, O’Kubasu’ Deverell JJ.A) and held that:“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.”

25. The Court of Appeal in the case of Joel Muga Opinja v East Africa Sea Food Ltd [2013] eKLR restated this position as follows:“We agree that the best way to prove ownership would be to produce to the Court a document from Registrar of Motor Vehicles showing who the registered owner is but when the abstract is not challenged and is produced in Court without any objection, the contents cannot later be denied”

26. All these judicial pronouncements demonstrate that the presumption that the person registered as owner of a motor vehicle in the log book is the actual owner is rebuttable. Where there exists other compelling evidence to prove otherwise, then the Court can make a finding of ownership that is different from that contained in the log book. Each case must however be considered on its own peculiar facts. As observed by the Court of Appeal in the case of Francis Nzioka Ngao v Silas Thiani Nkunga,Civil Appeal No.92 of 1998 that:“whether the property in a chattel being sold has or has not been passed to the buyer is a question of fact to be determined on the facts of each individual case."

27. In this case, there is undisputed evidence via the tax invoice adduced by the appellant showing that the appellant had already sold the suit motor vehicle. Even ignoring this as suggested by the 1st respondent, as earlier stated and as evidenced from the police abstract adduced by the 1st respondent, the insurable interest over the suit motor vehicle is registered to the 2nd respondent.

28. In the case of Muhambi Koja Said v Mbwana Abdi [2015] eKLR, the Court of Appeal in conclusion stated thus:“In a nutshell, a police abstract report or any other form of evidence will be proof of ownership of a vehicle and will displace the registration (log) book if it is demonstrated that the person named in the registration (log) book has since transferred and divested himself of ownership to the person named in that other form of evidence.”

29. The above position was also upheld in the case of Jared Magwaro Bundi & Another v Primarosa Flowers Limited [2018] eKLR.

30. In my view, if the suit motor vehicle belonged to the appellant as alleged, then it would be evident from the insurable interest as contained in the police abstract but this was not the case. In the instant case, it is discernible, in my view, that the transfer of the suit motor vehicle to Davis Ouma had not been done, although possession had passed to him. Further, the appellant adduced evidence that was uncontroverted before the trial court to show that the 2nd respondent was not its employee. All these point to the fact that the appellant did not enjoy possessive interest over the suit motor vehicle. No adverse inference therefore should be made against the appellant for the sole reason that it did not follow up with Davis Ouma to ensure that the transfer had been effected.

31. Although no sale agreement was exhibited in Court, the fact that the appellant had sold the tuk-tuk to the respondent, and that the tuk-tuk had been in the 2nd respondent's possession when the accident occurred and further that the insurance details as contained in the police abstract adduced by the appellant pointed at the 2nd respondent as the owner of the suit motor vehicle.

32. Having considered this evidence, I am satisfied that the appellant proved before the trial court that it had already sold the tuk-tuk to one Davis Ouma long before the said accident. The appellant, in my view view rebutted the presumption that it was still the owner of the tuk-tuk.

ii. Whether the learned trial magistrate erred in law and fact in finding the appellant 100% vicariously liable for causing the alleged accident. 33. On the issue of liability, the appellant pleaded and submitted that the trial court erred by holding it vicariously liable for the accident as the 2nd respondent who was driving the suit motor vehicle was not its employee. The appellant produced a list of its employees that did not include the 2nd respondent.

34. The 1st respondent had pleaded that the 2nd respondent caused the accident while carrying his duties on instructions from the appellant.

35. The Court of Appeal, in the case of Paul Muthui Mwavu v Whitestone (K) Ltd [2015] eKLR (Okwengu, Makhandia & Sichale, JJ.A) held as follows:“(21)Moreover, even assuming that the issue of vicarious liability was an issue for determination, in the Nuthu case, this Court applied Morgans v Launchbury & Others [1972] 2 ALL E R 607 in which it was stated:-“In order to fix liability on the owner of a car for the negligence of a driver, it is necessary to show either that the driver was owner’s servant or at the material time the driver was acting on the owner’s behalf as his agent. To establish the existence of the agency relationship 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 the task or duty thereby delegated to him by the owner…”(22)In the same Nuthu case the Court restated the law on vicarious liability adopting the statement of Newbold P in Muwonge vs A.G. of Uganda [1967] E A 17 as follows:“The law, is so long as the driver’s act is committed by him in the course of his duty, even if he is acting deliberately, wantonly, negligently, or criminally, or even if he is acting for his own benefit or even if the act is committed contrary to his general instructions, the master is liable.”

36. In the instant case, the first issue is to establish the agency/employer-employee relationship between the driver and the owner of the suit motor vehicle- tuk tuk and then secondly, establish whether the driver was driving the suit motor vehicle tuk tuk at the owner’s request or authority, express or implied.

37. I have already found and held that the appellant was not the owner of the suit motor vehicle and as such it could not exercise any control over the 2nd respondent.

38. In addition, no evidence was adduced by the 1st respondent to show that the 2nd respondent was an employee or agent of the appellant and that he was driving the suit motor vehicle at the appellant’s request or authority.

39. There was no reason for the trial court to find the appellant vicariously liable for the accident in light of the evidence presented of the appellant’s employees.

40. Accordingly, I find that the trial court erred in finding the appellant 100% vicariously liable for the accident which was caused by the 2nd respondent driver of the tuk-tuk.

iii. Whether the learned trial magistrate erred in law and fact by entering judgement against the appellant for a sum that was astronomically high and excessive 41. The principles upon which the appellate court may interfere with the award made by the trial court are settled as observed in Kemfro Africa Limited T/A “Meru Express Services 1976” & Gathogo Kanini v. A.M. Lubia & Olive Lubia [1982 – 1988] 1 KAR 727, 730 where Kneller J.A said:“The Principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the judge in assessing the damaged, took into account an irrelevant factor, or left out of account a relevant one or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”

42. In view of the above principle, it is this court’s opinion that since money cannot renew a physical frame that has been shattered or battered, the respondent is only entitled to what in the circumstances, is fair compensation on the principle that comparable injuries should be compensated by comparable awards.

43. In this case, it was evident from the evidence produced as PEX1,3, 6a and PEX7 that the 1st respondent suffered the following injuries;i.Head Injuries with bruisesii.Injuries to the chestiii.Injuries to the left side of the face with bruisesiv.Injuries to the left shoulder with bruisesv.Injuries on the left hand with a fracture of ulna and radiusvi.Injuries on the left leg with cut woundsvii.Injuries to the left hip

44. The trial court awarded the 1st respondent general damages of Kshs. 500,000. In the case of Philip Musyoka Mutua v Leonard Kyalo Mutisya [2018] eKLR the plaintiff suffered injuries of Close fracture left radius bone, Forehead and facial laceration wounds and Blunt trauma to the chest the court on appeal upheld the trial court’s award of Kshs. 300,000 as general damages.

45. In the case of Jackson Mbaluka Mwangangi v Onesmus Nzioka & another [2021] eKLR the appeal court increased the award of Kshs. 350,000 to Kshs. 600,000 in a case where the Appellant sustained blunt injury to the right shoulder and fracture of the left femur.

46. Considering the aforementioned cases, I find that the award of Kshs. 500,000 was a reasonable award and will not interfere with the trial court’s award.

47. The upshot of the above is that I allow this appeal on the first and second limb on ownership and vicarious liability of the appellant. I set aside the trial court’s judgment in as far as it found that the appellant was the owner of the motor vehicle (Tuk-tuk) registration number KTWB 266M Piaggio that was alleged to have caused the accident and further that the appellant was 100% vicariously liable for causing the accident. I substitute that judgment with an order dismissing the suit in the court below against the appellant herein Car & General Trading Limited with no orders as to costs as the duty of the trial court was to pronounce the law based on evidence adduced and not accept any every evidence which was not supported by the law.

48. That error of finding the appellant herein as the owner of the accident tuk-tuk and that it was vicariously liable for acts of the 2nd respondent could have been avoided by the trial court by examining the law and judicial pronouncements on that issue of ownership of motor vehicles. The appeal against quantum of damages is dismissed. I sustain the award of kshs 500,000 general damages awarded to the 1st respondent against the 2nd respondent whose liability did not extend to the Appellant herein.

49. I order that each party bear their own costs of this appeal.

50. This file is closed.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 29TH DAY OF JUNE, 2023R.E. ABURILIJUDGE