[2022] KEHC 1363 (KLR)

REPUBLIC OF KE NYA

IN THE HIGH COURT OF KENYA

AT MURANG’A

CIVIL APPEAL NO 86 OF 2014

JANE WANGECHI IRUNGU....................................................................................APPELLANT

VERSUS

GERALD IRUNGU...................................................................................................RESPONDENT

(Being an Appeal from the judgement and decree of theSenior Principal Magistrates Court

at Muranga datedanddelivered on 19th September 2014 by Hon. Mr. NzyokiSPM

at Murang’aINPMC CIVIL CASE NO 184 OF 2011)

JANE WANGECHI IRUNGU.......................................................................................PLAINTIFF

VERSUS

GERALD IRUNGU......................................................................................................DEFENDANT

JUDGEMENT

1. The appellant sued the respondent, in respect of a road traffic accident which occurred on 7th day April 2011 while the same was travelling as a passenger in motor vehicle registration number KAU 992Q and she pleaded that the respondent was the registered and beneficial owner thereof. She sought for special and general damages for pain, suffering and loss of amenities together with cost of the suit as a result of the negligence on the part of the respondent, his driver servant and or agent.

2. By a defence dated 22nd august 2011, the respondent denied being the registered and beneficial owner of the subject motor vehicle and further denied the occurrence of the accident and or negligence on his part and sought that the suit be dismissed with cost.

3. The cause proceeded for full hearing in which to prove her case the appellant called and had examined a total of four witnesses and at the close of the plaintiff’s case the respondent tendered no evidence in his defence.

4. By a judgement dated 19th September 2014 the trial court, on the issue of ownership rendered himself thus: “the information contained in the police abstract exhibit no 3 cannot be sufficient proof of ownership. See the case nyeri civil appeal no 192of 1996 Thuranira Karuri versus Agnes Ncheche. The prove(sic) of ownership was necessary so that negligence would attach to the defendant vicariously. The plaintiff failed to prove ownership of the matatu KAU 992Q as at 7th April 2011 the suit against the defendant must fail and is dismissed with cost “.

5. As is required the court assessed general damages at Kenya shillings 200,000 as reasonable award had the plaintiff established ownership.

6. Being aggrieved by the said judgment, the appellant filed this appeal and based the same on the ground that the trial court erred in law and fact in dismissing the suit against the wait of the evidence tendered.

7. Directions were issued that the appeal be heard by way of written submissions which were dully filed and which I shall consider while analyzing the issues herein.

8. This being a first appeal, the court is under a duty to re-evaluate the evidence tendered before the trial court and to come to my own conclusion there on which I shall do when determining the issues herein.

9. From the submissions by both parties, it is clear that the only issue for determination on this appeal is whether the trial court was right in dismissing the case on the ground that ownership was not proved through the police abstract which was produced by PW3 PC JOHN OUKO, who testified that the accident was self-involving and that the owner of the motor vehicle was the Respondent as per the content of the police abstract.

The respondent in cross examining the said witness did no challenge the content of the said abstract as regards the particulars thereon and neither did he offer any evidence in rebuttal.

10. This being a civil matter where the burden of proof is on a balance of probability, once the appellant had tendered in evidence through the police abstract to show that the respondent was the registered owner of the subject motor vehicle, the evidential burden then shifted to the respondent to dislodge the same which he failed to so do.

11. It is also clear that the trial courts attention was not drawn to the latest court of Appeal decisions and in particular JOEL MUGA OPIJA V EASTNGECHE (supraAFRICA SEA FOOD LTD [2013] e KLR submitted by the Appellant in which the court of appeal departed from the holding in THURANIRA KARURI vs AGNES (supra) which the trial court used in support of his holding , in which the court specifically stated that “we agree that the best way to prove ownership would be to produce to court a document from the register of motor vehicles showing who the registered owner is, but when the abstract is not challenged and is produced without objection, its contents cannot be later denied “.

12. Am further persuaded by the holding in RAPHAEL MUTUMA MWITI v FLORENCE MUKONYO MAINA [2021] e KLR submitted by the appellant in support of her submission, to the correct position, where the court had this to say on the issues in contention; 18. Going by the record, the appellant did not challenge the contents of the police abstract by way of contrary evidence or at all during the trial. In the absence of any such contrary evidence, a police abstract is deemed to be conclusive proof of ownership. This was the position taken by the Court of Appeal in the case of Wellington Nganga Muthiora v Akamba Public Road Services Ltd & Another (2010) eKLR as referenced in the case of Lochab Transport (K) Limited & another v Daniel Kariuki Gichuki [2016] eKLR that:

“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”

19. From the foregoing, I am satisfied that the respondent proved on a balance of probabilities the ownership of the respective motor vehicles.

13. I am satisfied that the appellant proved on a balance of probability, the ownership of the subject motor vehicle and therefore the trial court fell into error in requiring the appellant to prove her case beyond reasonable doubt and as such allow the appeal herein, set aside his judgement in dismissing the case and substitute the same with a judgement against the respondent on liability at 100%.

14. Since the parties did not dispute the trial court assessment of General Damages at ksh200000, I will not interfere with the same.

15. In the final analysis I allow the appeal herein, set aside the judgement in MURANGA SPMCC NO 184 of 2011 issued on 19th September 2011 and substitute the same with a judgement in favour of the appellant against the respondent, with an award of damages at the sum of Kenya shillings two hundred thousand with cost and interest thereon at court rates.

16. The appellant is also entitled to the cost of this appeal.

17. And it is ordered.

SIGNED DATED AND DELIVERED AT MURANGA THIS 23RD DAY OF MARCH, 2022.

J. WAKIAGA

JUDGE

In the presence;-

Court Assistant: Mutahi

Mr. Wahome for the Appellant:

Mr. Karina holding brief for Ms Chichi for the Respondent