[2023] KEHC 25502 (KLR)

Honda Motorcycle Kenya Limited v Oloo & 2 others (Civil Appeal E136 of 2021) [2023] KEHC 25502 (KLR) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25502 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal E136 of 2021

RE Aburili, J

November 17, 2023

Between

Honda Motorcycle Kenya Limited

Appellant

and

Everlyne Auma Oloo

1st Respondent

Wallace Olello Atim

2nd Respondent

Vision Techno Trade Limited

3rd Respondent

(An appeal arising out of the ruling of the Honourable C.L. Yalwala in the Principal Magistrate’s Court at Maseno delivered on the 27th October 2021 in Maseno PMCC No. 75 of 2018)

Judgment

Introduction 1. This is an appeal against the ruling of the Subordinate court declining to strike out the appellant’s name from the proceedings therein following an application made by the Appellant seeking to have its name struck out from the suit under Order 1 Rule 10 (2), 14 and 25 of the Civil Procedure Rules.

2. The 1st respondent sued the 2nd respondent vide an amended plaint dated 28th September 2018 seeking general damages arising from injuries sustained in a road traffic accident which allegedly occurred on the 4th August 2018 involving motor vehicle registration No. KCN 343F.

3. The 2nd respondent denied liability and blamed the 1st respondent and the owner/rider of motorcycle registration No. KMDZ 027G on which the 1st respondent was a pillion passenger. The 2nd respondent also took out Third Party proceedings against the appellant whom he joined as owner of the motorcycle registration No. KMDZ 027G.

4. The appellant on his part took out third party proceedings against the 3rd respondent on the ground that it had sold the motorcycle registration No. KMDZ 027G to the 3rd respondent. The appellant subsequently filed an application dated 5th February 2021 seeking orders that its name be struck out from the suit averring that it had sold the motorcycle to the 3rd respondent and that therefore, as at the time of the accident, the appellant was not in possession and or control of the aforementioned motorcycle.

5. The application was opposed by the 3rd respondent who stated that the appellant was still the registered owner of the motorcycle and as such, was a necessary party to the proceedings.

6. The trial court held that as the person who was in actual possession, use and control of the suit motorcycle as at the time of the accident had not been established and the appellant was still registered as the owner of the suit motorcycle, the appellant’s application to be struck off from the proceedings lacked merit and was thus dismissed.

7. Aggrieved by the ruling of the Trial Court, the appellant filed a Memorandum of Appeal dated 25th November 2021 and filed on the 26th November 2021 raising the following grounds of appeal:i.That the Honourable Magistrate erred in law and fact when he disregarded the High Court and of the Court of Appeals decisions of ownership of the motor vehicles and motorcycles and consequently arrived at the wrong decision.ii.That the Honourable Magistrate erred in law and fact by failing to consider the evidence tendered by the appellant with regard to the contract for the actual sale of motorcycle in issue, KMDZ 027G to the 3rd respondent.iii.That the Honourable Magistrate erred in law by finding that whereas there was evidence that the appellant had sold the motorcycle KMDZ 027G to the 3rd respondent, it had not yet proved it was not the owner of the motorcycle.iv.That the Honourable Magistrate erred in law and in fact in finding that whereas the 3rd respondent had sold the motorcycle in issue on 3rd December 2016, 20 months before the accident, this was not enough evidence to absolve the appellant.v.That the Honourable Magistrate erred in law and in fact in holding that the matter should proceed for full trial to determine ownership of the motorcycle and the appellant’s liability.

8. The appellant’s prayer is for this Court to set aside the trial magistrate’s ruling with costs in the trial court and this appeal, to be borne by the 3rd respondent.

9. The appeal herein was canvassed by way of written submissions but only the appellant filed its submissions.

The Appellant’s Submissions 10. The appellant’s counsel submitted that it ought to have been struck out of the suit at the preliminary stage as it had been improperly enjoined to the suit as provided for in Order 1 Rule 10 (2) of the Civil Procedure Rules and as set out in the following cases;Diamond Trust Bank Kenya Limited v Richard Mwangi Kamotho & 2 Others [2017] eKLR, Nancy Ayemba Ngaira v Abdi Ali[2010] eKLRand Jared Magwaro Bundi & Another v Primarosa Flowers Limited [2018] eKLR.

11. Counsel for the appellant submitted that the trial magistrate failed to consider the evidence adduced by the appellant specifically the Non-Exclusive Dealership Agreement dated 11th August 2015 entered between it and the 3rd respondent.

12. It was the appellant’s submission that in certain matters, wrongful joinder can be tried through affidavit or oral evidence at a preliminary stage as was held in the case ofDiamond Trust Bank Kenya Limited supra.

13. Further submission was that in spite of the provisions of Section 8 of the Traffic Act, jurisprudence existed to the contrary where the person in whose name the vehicle was registered proved the contrary as was held by this court in David Ogol Alwar v Mary Atieno Adwera & David M. KituyiCivil Appeal No. 47 of 2019,[2021]e KLR, the cases of Charles Nyambuto Mageto v Peter Njuguna Njathi [2013]eKLR and that of Samuel Mukunya Kamunge v John Mwangi Kamuru [2005] eKLR.

14. It was submitted that the 3rd respondent admitted that it was in possession and control of the motorcycle and had sold it on 3rd December 2016 to one Joshua Chan Olweny effectively absolving the appellant from any blame and or legal liability thus there was no prima facie case against the appellant to warrant it remaining a party to the proceedings.

15. The appellant’s counsel submitted that the trial magistrate erred in holding that the matter should proceed for full trial to determine ownership and the appellant’s liability, whereas the appellant had demonstrated that it was not the owner of the subject motorcycle.

Analysis and Determination 16. This being a first appeal, this Court has the duty to analyze and re-examine the evidence adduced in the lower Court and reach its own conclusion but bear in mind that it neither saw nor heard the witnesses testify and make due allowance for the said fact. The powers of this court on appeal are stipulated in section 78 of the Civil Procedure Act as interpreted in many judicial pronouncements. In Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, the Court stated as follows-“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”

17. The issue for determination in this appeal, upon my consideration of the proceedings and pleadings in the lower court, the ruling as impugned and the grounds of appeal supported by the submissions and legal authorities cited by the appellant’s counsel is whether the trial court erred in failing to strike out the appellant from the suit before it in Maseno PMCC No. 75 of 2018.

18. The appellant in this appeal has invited me to strike the appellant’s name from the suit in the court below for having been wrongfully enjoined to the said suit.

19. Regarding joinder of parties, Order 1 rule 9 of the Civil Procedure Rules provides that no suit shall be defeated for misjoinder or non-joinder of parties and requires that the court deals with the matter in controversy, so far as regards the rights and interests of the parties actually before it.

20. Order 1 Rule 10 (2) of theCivil Procedure Rules is in the following terms:“The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”

21. Order 1 Rule 14 of the Civil Procedure Rules further provides for the time and manner in which the application envisaged under Order 10 (2) of the Civil Procedure Rules is to be brought. Order 1 Rule 14 of the Civil Procedure Rules provides as follows:“Any application to add or strike out or substitute a plaintiff or defendant may be made to the court at any time before trial by chamber summons or at the trial of the suit in a summary manner.”

22. A plain reading of the foregoing does not support the general assertion that the Rules anticipate in all cases that a full trial be held before a party may be found to be improperly joined. The rationale behind the provisions is not difficult to find; a party improperly enjoined in a suit does not have to endure the rigour of a full trial and thereby incur expenses before it can vindicate itself. Order 10 (2) of the Civil Procedure Rulesallows parties to move the court to strike out the name of a Plaintiff or Defendant improperly joined or to have a necessary party added “in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit.” In my view, a court of law can only effectually and completely adjudicate upon and settle all questions involved in a suit when the correct parties are before the court.

23. In this case, the appellant adduced evidence before the trial court that although it was the registered owner of the accident motor cycle, it had sold and parted with possession of the suit motorcycle to the 3rd respondent before the material accident occurred.

24. This court in the case of David Ogol Alwar supra held that there were other proofs of ownership other than registration of such ownership in the logbook. Section 8 of the Traffic Act (Chapter 405 of the Laws of Kenya) 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. That section which is couched in terms of a rebuttable presumption does not restrict a party from proving ownership of the motor vehicle by means other than by the copy of records or log book. The provision leaves room for proof of ownership by other evidence as was stated by Emukule J (as he then was) in Charles Nyambuto Mageto v Peter Njuguna Njathi NKU HCCA No. 4 of 2009 [2013] eKLR thus:“From the interpretation of Section 8 of the Traffic Act as elucidated above, a person claiming or asserting ownership need to necessarily produce a log book or a certificate of registration. The courts recognize that there are various forms of ownership, that is to say, actual, possessionary and beneficial, all of which may be proved in other ways, including by oral or documentary evidence such as the Police Abstract Report even, as held in the Thuranira and Mageto cases (supra) that the Police Abstract Report is not, on its own, proof ownership of a motor vehicle. If, however there is other evidence to corroborate the contents of the Police Abstract as to the ownership, then, the evidence in totality may lead the court to conclude on the balance of probability that ownership.”

25. Similarly, Okwengu J., (as she then was) in Samuel Mukunya Kamunge v John Mwangi Kamuru Nyeri HCCA No. 34 of 2002[2005] eKLR expressed the view that:“It is true that a certificate of search from registrar of motor vehicles would have shown who was 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 as vehicles often times change hands but the records are not amended.”.

26. As was stated in the case of Charles Nyambuto Mageto & Another v Peter Njuguna Njathi [2013] eKLR:“The courts recognize that there are various forms of ownership ..... actual, possessory and beneficial, all of which may be proved in other ways, including by oral or documentary evidence....”

27. The evidence by the appellant that they had sold the suit motorcycle to the 3rd respondent as demonstrated by the sale agreement and invoices and receipts that were stamped by the 3rd respondent and produced in evidence annexed to the supporting affidavit proved on a balance of probabilities that the appellant was no longer in actual possession and ownership of the said motorcycle.

28. In the instant case, the Civil Procedure Rules provide for the question of joinder to be tried by affidavit evidence, or even by oral application. That is the gist of the provisions of Order 1 Rules 10 and 14 and 25 of the Civil Procedure Rules. This is not the only question that can be tried at an interlocutory stage in a suit by a way of affidavits. Order 36 of the Civil Procedure Rules allows a claimant to apply for summary or partial judgment before the hearing, while under Order 2 Rule 15 of the Civil Procedure Rules, a pleading such as a defence may be struck out on the application of a Plaintiff and judgment entered against a Defendant.

29. In such cases, it would be a misdirection to construe the term evidence in a narrow sense that effectively excludes affidavit evidence. This appears to be the invitation made to the lower court and before this court by the 1st Respondent. I decline to be invited to find so and add that, affidavit evidence is proper evidence in interlocutory applications.

30. The Appellant in this case through sworn affidavit evidence gave reasons why its name ought to be struck off from the suit. The 1st Respondent’s claim was based on the tort of negligence and based on the alleged ownership of the accident motorcycle by the Appellant and its alleged master/servant (Agent) relationship with the motorcycle rider. This had been denied in the defence and substantiated through the affidavit evidence in respect of the motion. The annexed Sale Agreement clearly set out the existence of an agreement between the Appellant and the 3rd Respondent in the material period wherein the appellant had parted with possession of the motorcycle.

31. I agree with the Appellant’s submissions therefore that in the context of this case, the trial court erred by ignoring or dismissing the uncontroverted affidavit evidence and legal authorities concerning ownership and liability that were tendered in respect of the application by the Appellant.

32. The upshot is that I find this appeal overwhelmingly meritorious. I hereby allow this appeal, set aside the ruling delivered on the 27th October 2021 in Maseno PMCC No. 75 of 2018 and substitute it with an order allowing that application and I proceed to strike out the appellant’s name from the said suit.

33. As the issue for determination was one which the trial court ought to have taken up in the first instance and acted in accordance with the established law by considering the material placed before it, and as the appeal herein has not been contested in any way meaning the respondents left the issue to this court to set the record straight I find no fault on the part of the respondents. I therefore order that each party shall bear their own costs of the appeal. The lower court file to be returned forthwith together with a copy of this judgment served on the trial court, upon extraction of decree herein.

34. I so order.

35. This file is closed

DATED, SIGNED AND DELIVERED AT KISUMU THIS 17TH DAY OF NOVEMBER, 2023R.E. ABURILIJUDGE