[2017] KEHC 6407 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 181 OF 2009

FELISTA WANJIKU KAMAU …………………………………….……APPELLANT

VERSUS

LOGISTICS SUPPLIES CO. LTD ……………………..…………….. 1ST RESPONDENT

JOSEPH KAMAU KARANJA ……………………………………….... 2ND RESPONDENT

JUDGMENT

1. The appellant sued the respondents seeking recovery of damages arising from an accident alleged to have occurred on 8th January, 2004. In her further amended plaint further amended on 10th November, 2006, the appellant alleged that she was lawfully riding on a bicycle along Nairobi – Garissa road near Metro Fill petrol station when the defendants’ driver negligently drove motor vehicle registration number KAN 540S that it knocked her down. She claimed that as a result thereof she sustained compound fracture of the right mid tibia fibula and right side trunk pain. The appellant pleaded that the 1st respondent was the owner of the vehicle registration number KAN 540S (‘the vehicle’) while the 2nd respondent was the insurance policy holder.

2. The respondents vide the statement of defence dated 2nd February, 2005 denied the appellant’s claim. It was particularly stated that save that an accident occurred on the material date involving the aforesaid motor vehicle, the same was not caused by the defendants’ negligence but that it was solely caused by the negligence on the part of the plaintiff. The 2nd defendant filed a defence to the amended plaint in protest dated 27thOctober, 2005 wherein he made no admission in regard to paragraph 4 of the amended plaint. He averred that the 1st defendant was the owner of the vehicle and that him [2nd defendant] being the insured thereof had no consequence to the suit. He averred that no cause of action had been disclosed against him. He pleaded that the 2nd defendant was not driving the vehicle and had not engaged any driver to drive the vehicle at the material time. The particulars of negligence pleaded by the appellant were denied.

3. The trial magistrate heard the matter and dismissed it on the basis that the plaintiff had failed to prove ownership of the vehicle.

4. Aggrieved by the said judgment, the appellant filed this appeal on the following grounds:

i.That the learned trial magistrate erred in law and in fact in failing to appreciate that the plaintiff satisfactorily proved her case both on liability and quantum.

ii. That the learned trial magistrate erred in law and in fact in failing to consider the pleadings before her especially the defendant’s statement of defence.

iii. That the learned trial magistrate erred in law and fact in failing to give due consideration to the fact that the defendants have admitted ownership of the accident motor vehicle in their defence and thereby wrongly dismissed the plaintiff’s claim.

iv. That the learned trial magistrate erred in law and in fact in failing to evaluate the evidence before her collectively in support of the plaintiff’s claim and as such arrived at the wrong conclusion which was inconsistent with the evidence which was not rebutted and pleadings.

iv. That the learned trial magistrate erred in law and in fact in failing to make an assessment of the damages that the court would have awarded the plaintiff had it found that she succeeded in proving her case.

5. From the above grounds, it is my view that the following issues fall for this court’s determination:

a) Whether or not the appellant proved ownership of the vehicle.

b) Whether the appellant proved her case on liability and quantum.

c) Whether or not the trial magistrate erred in not assessing damages awardable to the appellant.

6. In determining this appeal, I am minded of the fact that it is a first appeal. This court is thereby duty bound to re-evaluate and re-analyze the evidence tendered during trial and come to its own conclusion. This however has to be done factoring the fact that this court did not have the advantage of seeing and assessing the demeanor of the witnesses. See SELLE AND ANOTHER V. ASSOCIATED MOTOR BOAT CO. LTD, [1968] EA 123.

7. I shall address the issues seriatim. In their joint defence dated 2nd February, 2005, the 1st and 2nd respondents denied being owner and insurance policy holder of the vehicle respectively. However, in the 2nd respondent’s defence, ownership of the vehicle is attributed to the 1st respondent though the 1st respondent has not admitted ownership of the same. In the circumstances aforesaid, the ownership of the vehicle was an issue for determination by the learned magistrate. The plaintiff produced the police abstract as exhibit 8. The same shows that the vehicle was owned by the 1st respondent at the material time of the accident but as to whether the 2nd respondent was the insured or not, there is no evidence to that effect.

8. There is no doubt that ownership of vehicles in Kenya often change hands without updating the records at the Registrar of motor vehicles. The said situation is envisaged under section 8 of the Traffic Act (Cap 403) which provides:

“The person in whose name a vehicle is registered shall, unless the contrary is proved be deemed to be the owner of the vehicle.”

It follows therefore that a copy of records/ certificate of search or a logbook may not be conclusive proof of ownership of a motor vehicle. See for example the finding of Judge Okwengu in SAMWEL MUKUNYA KAMUNGE V JOHN MWANGI KAMURU, CIVIL APPLN NO.34 OF 2002Hon. Okwengu, J [as she then was] stated:

“It is true that a certificate of search from the Registrar of motor-vehicle would have shown who was the registered owner of the motor-vehicle according to the records held by the Registrar of motor vehicle. That however is not conclusive proof of actual ownership of the motor vehicle as section 8 of the Traffic Act provides that the contrary can be proved. This is in recognition of the fact that often times vehicles change hands but the records are not amended.

I find that the trial magistrate was wrong in holding that only a certificate of search from the Registrar of motor vehicle could prove ownership of the motor-vehicle. I find a police abstract report having been produced showing the Respondent as the owner of motor vehicle KAH 264A, and evidence having been adduced that letters of demand sent to the Respondent elicited no response from him denying ownership of the motor vehicle, and the Respondent having offered no evidence to contradict the information on the police abstract report, the appellant had established on a balance of probability that motor vehicle KAH 264A was owned by the Respondent.”

Similarly in the case ofJOTHAM MUGALO V TELKOM (K) LTD, (2005) eKLR the court held:

“Whereas it is true that it is the responsibility of the plaintiff to prove that the motor vehicle which caused the accident belonged to the defendant and the production of a certificate of search is a valid way of showing the ownership, it is not the only way to show that a particular individual is the owner of the motor vehicle as this can be proved by a police abstract. Since a police abstract is a public document, it is incumbent upon the person disputing its contents to produce such evidence since in a civil dispute the standard of proof requires only balance of probabilities. Where the defendant alleges that the motor vehicle which caused the accident did not belong to him, it is up to them to substantiate that serious allegation by bringing evidence contradicting the documentary evidence produced by the plaintiff as required by section 106 and 107 of the Evidence Act. The particulars of denial contained in the defence cannot be a basis to reject a claim simply because a party has denied the existence of a fact as a fact denied becomes disputed and the dispute can only be resolved on the quality or availability of evidence.”

And the Court of Appeal in WELLINGTON NGANGA MUTHIORA V AKAMBA PUBLIC ROAD SERVICES LTD & ANOTHER, (2010) eKLRheld:

“Where police abstract was produced and there was no evidence adduced by a defendant to rebut it and not even cross-examination challenged it, the police abstract being a prima facie evidence not rebutted could be relied on as proof of ownership in the absence of anything else as proof in civil cases was within the standards of probability and not beyond reasonable doubt as is in criminal cases. However, where it was challenged by evidence or in cross-examination, the plaintiff would need to produce certificate from the Registrar or any other proof such as an agreement for sale of the motor vehicle which would only be conclusive evidence in the absence of proof to the contrary”

9. In view of the aforegoing, I find that the appellant proved on a balance of probability that the first respondent owned the vehicle and therefore the trial magistrate erred in finding that the appellant had not proved ownership of the vehicle. The third ground of appeal is thereby merited.

10. On the second issue, particularly in regard to liability, the trial magistrate analyzed the evidence and drew an inference that the driver of the vehicle negligently joined the main road from a minor road without giving way to traffic on the main road. She however made no finding on liability on the basis that ownership of the vehicle had not been proved.

11. Applying the reasoning herein, it emerged from the appellant’s evidence that she was on the material day aboard a bicycle. As she was on Garissa road, the vehicle came from the petrol station and hit her. She stated that the bicycle had almost passed the entrance of the petrol station. On cross examination she reiterated her testimony and affirmed that the vehicle appeared suddenly from the petrol station.

12. Through the defenses herein remain mere allegations not proved by evidence as required under sections 107 and 108 of the Evidence Act, the burden of proof still remained with the appellant on a balance of probability. In the circumstances I find the 1st respondent 100 % liable for the accident as the registered owner of the motor vehicle but I do not find any evidence on record to connect the 2nd respondent to the ownership and/or possession of the vehicle.

13. On quantum, it was contended that the trial magistrate erred in failing to determine the damages that would have been awarded to the appellant had she succeeded. The appellant pleaded that she sustained, compound fracture of the right mid tibia fibula and right side trunk pain. Dr. George K. Karanja (PW1) confirmed the appellant’s injuries and stated that she was admitted at Thika District Hospital but the fracture failed to unite. That due to the said failure, metal implantation was put on July, 2004. That she was treated at Kikuyu Hospital in the year 2006 where the plates were replaced with nailing. That during the second examination, the appellant had a limping gait and has a surgical scar on her right leg. That she had angulation of the leg due to non- union of the tibula bone leading to a slight shortening. He testified that the appellant suffered maim and that she had not fully recovered. He indicated that the appellant needed removal of the nails at a cost of KShs.50,000/=. He further testified that she is likely to suffer osteoarthritis. On cross examination, the doctor indicated that the appellant can conduct normal duties.

14. The appellant in her testimony stated that she was treated at Thika Hospital for a day. That thereafter, she visited the hospital for treatment once a week for 7 months. She produced treatment documents to that effect (P. Exhibit 3a, b and c and P. Exhibit 4). That she was later admitted at Kikuyu Hospital for 5 days for surgery. She still had the metal implants at the time she was giving her evidence i.e. 5 years from the date of the accident.

15. I have considered the appellant’s injuries. The court in HASSAN NOOR MAHMOUD V TAE YOUN ANN, (2001) e KLRawarded a plaintiff who suffered similar injuries KShs.200,000/=. Bearing this in mind I find that KShs.350,000/= suggested by the plaintiff in her submissions filed the lower court as reasonable.

16. On special damages, the Doctor indicated that he charged KShs.1000/= for preparation of the medical report and KShs.5000/= for court attendance. The doctor also indicated that the appellant needed KShs.50,000/= for removal of nails. The appellant testified that she incurred costs for treatment and produced evidence to that effect. (P. Exhibit 5, 6 and 7. ) She confirmed the charges by the doctor. She pleaded that she incurred medical expenses of KShs.78,968/=, KShs.2,000/= medical report and KShs.100 for police abstract. I have perused the receipts that were produced as exhibits in the lower court. The total incurred by the plaintiff for medical expenses is KSh.76,698. In the result, I find and hold that the learned magistrate erred in dismissing the suit as against both the respondents. The appeal herein is allowed as against the first respondent. The judgment of the lower court dismissing the plaintiff’s case is hereby set aside and is substituted with an order for judgment on liability in favour of the appellant at 100%. As against the second respondent, the appeal is hereby dismissed but with no orders as to costs. On quantum judgment is entered in favour of appellant against the 1st respondent as follows:

1. General damages KShs.350,000/-

2. Costs of future treatment KShs.50,000/-

3. Special damages KShs.76,698/-

The appellant will have the costs of the appeal and that of the lower court suit.

Dated, signed and delivered at Nairobi this 20th day of April, 2017.

………………………………..

L. NJUGUNA

JUDGE