[2012] KEHC 1940 (KLR)
The court found that the respondent failed to adduce sufficient evidence to prove that the 2nd appellant owned the vehicle involved in the accident or that the 1st appellant was its driver or employee. The court held that reliance on a police abstract alone was inadequate to establish ownership, as established by...
Source-derived case information.
- Citation
- [2012] KEHC 1940 (KLR)
- Parties
- Appellant: John Gathuri; Appellant: Akamba Bus Services Ltd; Respondent: Judith M. M. Makokha
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 122 of 2010
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- AO Muchelule
- Legal Topics
- Road Traffic Accidents, Proof of Ownership, Vicarious Liability, Quantum of Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Gathuri
Appellant
Akamba Bus Services Ltd
Appellant
Judith M. M. Makokha
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the respondent proved ownership of the accident vehicle by the 2nd appellant on a balance of probabilities.
- 2 Whether the 1st appellant was proved to be the driver and/or employee or agent of the 2nd appellant.
- 3 Whether the trial court erred in relying on a police abstract as proof of ownership.
Ratio Decidendi
The court found that the respondent failed to adduce sufficient evidence to prove that the 2nd appellant owned the vehicle involved in the accident or that the 1st appellant was its driver or employee. The court held that reliance on a police abstract alone was inadequate to establish ownership, as established by binding precedent. Since the respondent did not produce a certificate from the Motor Vehicle Registry or other conclusive evidence of ownership, the trial court erred in finding liability against the appellants. Consequently, the respondent's case was not proved on a balance of probabilities, and the appeal was allowed, setting aside the lower court's judgment and dismissing the...
Court Disposition
appeal_allowed
Orders
- The appeal is allowed with costs.
- The judgment of the lower court is set aside.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
Civil Appeal 122 of 2010
(Appeal arising from the judgment and decree of the Senior Resident Magistrate F. Kyambia in Bungoma Court in civil case no.421 of 2009)
JOHN GATHURI ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: 1ST APPELLANT
AKAMBA BUS SERVICES LTD :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: 2ND APPELLANT
VRS
JUDITH M. M. MAKOKHA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
JUDGMENT
This is an appeal from the decision of the subordinate court in which the Respondent was awarded Ksh.250,000/= in general damages and Ksh.2,000/= in special damages for injuries she had suffered in an accident on 8/9/2008 involving motor vehicle registration KAQ 832 E make Scania bus at Kimaeti along Bungoma/Malaba road. It was the Respondent’s case that the bus belonged to the 2nd Appellant and was at the time being negligently driven by the 1st Appellant who was the employee and/or agent of the 2nd Appellant. The trial court agreed with the Respondent. The Appellants had pleaded in defence that the vehicle did not belong to the 2nd Appellant. They had denied that the 1st Appellant was the employee or agent of the 2nd Appellant. The fact of negligence was also denied. This appeal challenges the findings on liability and quantum.
The record of the lower court shows that the Respondent testified and called PW2 Samuel Omondi Buya to say that he was travelling with him in the bus. He then called Clinical Officer Elias Adoka (PW3) of Bungoma District Hospital to testify on the injuries suffered. No evidence was called in defence. The Respondent had blamed the driver of the vehicle for speeding and for dozing while driving. They, however, did not say they knew him or that he was the 1st Appellant. They did not say that they knew him to be the employee of the 2nd Appellant. Their testimony was that the bus belonged to “Akamba”. They were not led to say that “Akamba” was the 2nd Appellant. The Respondent produced a police abstract to show that the vehicle belonged to the 2nd Appellant. It was submitted before the trial court that on the basis of the Court of Appeal decision in Thuranira Karauri v. Agnes Ncheche, Civil Appeal no.192 of 1996 at Nyeri a police abstract was no sufficient to show that the person named therein was the owner of the vehicle; that the Respondent was required to produce a certificate from the Motor Vehicle Registry to show that the 2nd Appellant owned the vehicle. The trial court ignored the submission and went on to find that the police abstract was enough. The correct position is that the trial court was bound by the decision of the Court of Appeal on the issue.
The result is that the Respondent called insufficient evidence to show that the vehicle subject of the accident belonged to the 2nd Appellant. The driver of the vehicle was the 1st Appellant, or that the 1st Appellant was the employee of the 2nd Appellant.
I have taken into consideration the fact that the police abstract was made by the police who did not testify and therefore its contents as to who was the driver and to whom the vehicle belonged were not proved. The trial court was wrong to find that the Respondent’s case on liability had been proved on balance. With this determination it would be futile to discuss the issue of quantum.
The appeal is allowed with costs. The judgment of the lower court is set aside and in its place there shall be a judgment dismissing the Respondent’s suit with costs.
Dated, signed and delivered at Bungoma this 2nd day of October, 2012.
A.O. MUCHELULE
JUDGE