Mujukane v Rana Auto Selection Ltd & another (Civil Appeal E005 of 2025) [2026] KEHC 12899 (KLR) (19 August 2026) (Judgment)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MAKUENI CIVIL APPEAL NO. E005 OF 2025 EMMANUEL KASANDI MUJUKANE………………………………………………….…. APPELLANT VERSUS RANA AUTO SELECTION LTD. ……………………………………………………….1ST RESPONDENT JOEL OGISE ATUTI……………………………………………………………………..…2ND RESPONDENT **JUDGMENT** ***(Being an appeal from the judgment and decree of Hon. P. Gesora, CM in Makueni CMCC No. 18 of 2018 delivered on 17th July, 2025)*** 1. The appellant brought suit against the respondents following a road traffic accident which occurred 1st May, 2017 involving motor vehicles registration number KAM 265L and KCD 526B along Wote-Makindu road at Kivandini area. 2. In his plaint, the appellant pleaded that 1st defendant was the registered owner of motor vehicle registration number KCD 526B whereas the 2nd defendant was the beneficial owner of the said vehicle at the time of the accident. 3. The appellant averred in the plaint that he was driving motor vehicle registration number KAM 265L when motor vehicle registration number KCD 526B was negligently driven by the 1st and/or 2nd defendants’ servant, agent and/or driver causing the same to collide with motor vehicle registration number KAM 265L and as a result he sustained injuries. He blamed the 1st and/or 2nd defendants’ driver for the accident and particularized the particulars of negligence in the plaint. 4. The respondents filed defences to the plaintiff claim denying all the allegations in the plaint and blamed the appellant for the accident. The trial court upon hearing the case found that the appellant did not prove his case as required and dismissed the same. 5. The appellant being dissatisfied with judgment of the trial court instituted the instant appeal vide memorandum of appeal dated 31st July, 2025 based on the following grounds: - 6. *The learned magistrate erred in law and fact in finding that the appellant had not tendered any evidence to proof the negligence of the 2nd respondent’s driver.* 7. *The learned magistrate erred in fact by failing to take into account and to consider the evidence adduced on behalf of the appellant.* 8. *The learned magistrate erred in law and in fact in failing to give weight to the evidence of the police officer (PW2) who produced the occurrence book detailing how the accident occurred.* 9. *The learned magistrate erred in law and in fact in finding that the appellant had not proved his case on a balance of probability.* 10. *The learned magistrate erred in law and in fact in not apportioning liability between the drivers of the motor vehicles involved in the accident when both drivers confirmed that indeed the motor vehicles in their control collided.* 11. *The learned magistrate erred in law and in fact in failing to appreciate the submissions of the learned counsel for the appellant.* 12. *The learned magistrate erred in law and in fact in awarding costs of the case to the respondents.* 13. The appellant proposed that this court allows the appeal and set aside the decision of the trial court and find that the driver of the 2nd defendant was to blame for the accident either substantially or fully and the 1st and 2nd defendants therefore are vicariously liable. The appellant also proposed that the award of damages be maintained and the costs of the appeal and in the lower court be awarded to the appellant. 14. The appeal was heard by way of written submissions. The appellant submissions are dated 11th May, 2026, the 1st respondent submissions are dated 18th May, 2025 and 2nd respondent submissions are dated 20th May, 2026. I have read through and considered the submissions by all the parties herein. 15. This being the first appeal, the court is under a duty to reconsider and re-evaluate the evidence draw its own conclusions. The court must take great exception with respect that it has neither seen nor heard the witnesses. These principles were set out in the case of ***Selle & Another vs Associated Motor Boat Company Ltd & Others (1968) E.A.*** where the court held: ***“An appeal to this court from a trial court by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make a due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of witness is consistent with the evidence in the case generally (Abdul Hemeed Saif vs Ali Mohamed Sholan (1955), 22 E.A.C.A 270)*** 1. Bearing the foregoing in mind, I have duly considered the pleadings, the evidence adduced before the trial court and the submissions by the counsels for the parties. The appellant challenges the whole of the judgment of the trial court. 2. From the evaluation of the evidence adduced, it is not in dispute that an accident occurred involving motor vehicles registration number KAM 265L and KCD 526B. There is no dispute that motor vehicle registration number KAM 265L was being driven by the appellant at the time of the accident and that motor vehicle registration number KCD 526B was being driven by DW1. It appears also that there is no dispute that the appellant was injured in the said accident. The issues which emerge for determination in this appeal are: 3. *Ownership of motor vehicle registration number KCD 526B.* 4. *Who was to blame between the driver of motor vehicle registration KAM 265L and KCD 526B.* 5. *Whether the 1st and/or the 2nd respondents is vicariously liable for the accident.* 6. *Whether the appellant is entitled to damages as prayed in the plaint.* 7. On the first issue, the appellant pleaded in his plaint that the 1st respondent was the registered owner of motor vehicle registration number KCD 526B while the 2nd respondent was the beneficial owner of the said vehicle. 8. The 1st respondent during the trial adduced evidence that as at the time of the accident it had sold motor vehicle registration number KCD 526B to the 2nd respondent. A sale agreement was produced in court as exhibit. The 2nd respondent in his testimony admitted having purchased the said vehicle from the 1st respondent. This is supported by DW1 who stated that the vehicle was entrusted to him by the 2nd respondent for repairs. 9. The appellant in his submissions before the lower court relied on Section 8 of the Traffic Act on proof of ownership and contended that since the 1st respondent was the registered owner and that the 2nd respondent had completed payment, the 1st respondent had proprietary interests in the said vehicle and therefore is liable. 10. The 1st respondent in its submissions before the lower court and this court maintained that having sold the vehicle to the 2nd respondent, proof whereof was tendered in evidence, it should not have been joined in the suit leave alone being held liable. 11. The 2nd respondent did not submit on this issue both in the lower court and before this court. 12. Further the trial court did not make a finding on the issue of the ownership of motor vehicle registration number KCD 526B. 13. I am obliged as a first appellate court to consider and determine the issue of the ownership of the said vehicle. Section 8 of the Traffic Act provides: ***“The person in whose name a vehicle is registered shall, unless contrary is proved be deemed to be the owner of the vehicle.”*** 1. In this case there is no dispute that motor vehicle registration number KCD 526B was registered in the name of the 1st respondent. Unless contrary is shown, the 1st respondent is presumed to be the owner of the said vehicle pursuant to Section 8 of the Traffic Act. This presumption is rebuttable and the burden lies on the person who disclaim ownership to prove on a balance of probabilities that he was not the owner of the vehicle as at the time of the accident as in this case. 2. In the case of ***Jared Magwaro Bundi & Another vs Primarosa Flowers Limited (2018) e KLR*** the Court of Appeal held that: ***“It was therefore held in Muhambi Koja (supra) that Section 8 of the Traffic Act recognize registration book or the Registrar’s extract of the record as prima facie evidence of title to vehicle and persons in whose name the vehicle is registered is presumed to be the owner thereof unless the contrary is proved. The burden is discharged if, on a balance probability, it is shown that as a matter of fact the vehicle had been transferred but not yet registered, to a de facto owner, a beneficial owner or possessory owner. Such an owner though not registered for practical purposes may be more relevant that that in whose name the vehicle is registered.*** ***The position taken by court in Jael Muga Opija (supra) and Mohamed Koja (Supra) appears to us to accord with modern thinking and jurisprudence where the law is encouraging courts to interpret the law governed more by substance than the technical chains of form, the latter which does not ordinarily look at the justice of the case…”*** 1. In the instant case the 1st respondent tendered evidence through DW3 that the subject vehicle had been sold to the 2nd respondent. An agreement was produced as an exhibit. It was also clear from the evidence that the 2nd respondent had paid downpayment towards the purchase of the said vehicle. The 2nd respondent in his evidence was also categorical that the vehicle belonged to him and he had entrusted the same to DW1 to repair a fact DW1 conceded. 2. From that set of evidence, the 1st respondent proved that as at the time of the accident, it had sold the vehicle to the 2nd respondent and was no longer the owner of the said vehicle. The 2nd respondent admitted that he was in the possession of the said vehicle. Clear the 2nd respondent carried himself as the owner of the said vehicle. The fact that the vehicle was registered in the name of the 1st respondent does not discount the fact that the same had been sold to the 2nd respondent. My finding on this issue is that the 2nd respondent was the beneficial and possessory owner of the said vehicle and therefore no liability can attach to the 1st respondent in respect of the accident in this case. 3. Regarding the second issue on who was to blame between the drivers of the two vehicles which were involved in the accident, it was not disputed that the two vehicles collided. Motor vehicle registration number KAM 265L was being driven by the appellant whereas motor vehicle registration number KCD 526B was being driven by DW1. They all testified in court with each blaming the other. 4. The police officer who testified did not help the court to determine who was to blame. Although, the appellant submitted that an extract of occurrence book was produced as an exhibit on the circumstances of the accident, I have combed through the lower court record and I have seen none. The only document produced and is on record is the police abstract. A police abstract is only evidence that an accident was reported, but not proof on who is to blame. In any case the abstract showed that the case was still under investigation. 5. The trial court in dismissing the appellant’s claim, found that the appellant did not prove the particulars of negligence pleaded in the plaint. What is clear from the finding of the trial court is that there was no concrete and verifiable evidence to determine who was at fault between the conflicting evidence of the two drivers. 6. What the appellant told the trial court is that the driver of KCD 526B tried to overtake and went off the road and hit motor vehicle KAM 265L which he was driving. On the other hand, DW1 who was driving motor vehicle registration number KCD 526B denied causing the accident. He testified that the motor vehicle the appellant was driving avoided a pothole and hit the vehicle he was driving. Clearly, this was conflicting evidence and in absence of any other evidence to support the version given by either side, it became difficult to assign blame on either of the driver. 7. In the case of ***Farah vs Lento (2006) KLR 123*** the Court of Appeal in discussing such scenario as in this case where the evidence of the occurrence of the accident cannot determine who is to blame held: ***“In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs, the question arises whether both the drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame.”*** 1. In the circumstances of this case, the trial court fell into error by dismissing the appellant’s claim. The best the trial court should have done is to apportion blame equally among the two drivers. Having evaluated the evidence adduced before the trial court, I do hereby apportion liability at 50:50 between the appellant and DW1 the driver of motor vehicle registration number KCD 526B. 2. On the third issue, having found that the 1st respondent was not the owner of the motor vehicle KCD 526B as at the time of the accident in the circumstances of this case, the 1st respondent cannot be held vicariously liable as DW1 who was driving the said vehicle was not its driver or agent. The evidence was clear that there was no relationship whatsoever between the 1st respondent and the driver of motor vehicle KCD 526B. Consequently, it is only the 2nd respondent who can be held vicariously liable. Therefore, the 2nd respondent is vicariously liable for the acts of DW1 who was driving the said vehicle. 3. Even if we to say that DW1 was driving that vehicle without authority, as may have been argued before the trial court, it is clear that the 2nd respondent entrusted the said vehicle to DW1 to repair. The presumption is that DW1 was driving the said vehicle under instructions of the 2nd respondent. I am guided by the case of ***General Motors East Africa Ltd vs Eunice Alila Ndeswa & Another (2015) e KLR*** where Aburili J cited with approval the case of ***Kenya Bus Ltd vs Dina Kawira Humprey (2003) e KLR*** where it was held: ***“Where it is proved that a car caused damage by negligence then in the absence of evidence to the contrary, a presumption arises that it was driven by a person whose negligence the owner is responsible (See Bernard vs Sally (1931) 4 T.L.R 557). This presumption is made stronger or weaker by the surrounding circumstances and it is not necessarily disturbed by the evidence that the car was lent to the driver by the owner as the mere fact of lending does not of itself dispel the possibility that it was still being driven for the joint benefit of the owner and driver.”*** 1. In the instant case, it emerged clear from the evidence that DW1 was driving motor vehicle KCD 526B for test, presumably, after repairing the same on behalf of the 2nd respondent. It is obviously clear that in the normal course of business, mechanics who are entrusted with vehicles for repairs, may as well drive the vehicle for a road test to ascertain whether the mechanical defect has been fixed before handing over the vehicle to the owner. This can only be reasonably assumed the mechanic was driving the vehicle for the benefit of the owner. In the circumstances of this case the 2nd respondent cannot escape vicarious liability for the negligence of DW1. 2. Regarding the damages, I have noted the injuries sustained by the appellant to wit open right tibia/fibula fracture and shortening of the right lower leg. The doctor made a finding that the appellant will have difficulty in walking and that he sustained disability of 30%. I have equally considered the authorities cited by the appellant to support an award of Kshs. 3,000,000/= general damages. 3. Unfortunately, none of the respondents submitted on quantum of damages. The trial court after considering the decisions cited by the appellant awarded a sum of Kshs. 2,000,000/= general damages. I have no reason to disturb the said award. Similarly, the respondents did not challenge the award of special damages. Again, I have no reason to disturb the same. 4. The upshot is that the appeal partially succeeds. The judgment of the trial court is set aside and substituted as hereunder: 5. *The dismissal of the appellant’s suit is hereby set aside.* 6. *The suit against the 1st respondent is hereby dismissed with costs.* 7. *Liability is apportioned at 50:50 as between the appellant and the 2nd respondent.* 8. *General damages on 100% liability are assessed at Kshs. 2,000,000/=* 9. *Special damages are assessed at Kshs. 323,760/=* 10. *The award in 4 and 5 above shall be subject to liability.* 11. *The appellant shall have the costs of this appeal and in the lower court.* 12. Orders accordingly. **Dated, signed and delivered virtually this 19th day of August, 2026.** **Francis Kyambia** **Judge of the High Court.**