[2022] KEHC 11789 (KLR)

Mercy Paula Ngatha Wanja (Suing as a legal representative/administrator on behalf of the estate of Mary Gorrette Wanja Njeru - Deceased) v Mbogo (Civil Appeal E047 of 2021) [2022] KEHC 11789 (KLR) (20 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11789 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal E047 of 2021

LM Njuguna, J

July 20, 2022

Between

Mercy Paula Ngatha Wanja (Suing as a legal representative/administrator on behalf of the estate of Mary Gorrette Wanja Njeru - Deceased)

Appellant

and

Patrick Gicovi Mbogo

Respondent

(Being an appeal from the judgment and decree of J. Ndeng’eri SRM made and delivered on 11. 11. 2021 in CMCC No. 17 of 2018)

Judgment

1. The appeal herein was instituted vide the memorandum of appeal dated November 22, 2021 and filed in court on November 25, 2021. The appellant raised four (4) grounds of appeal and which are replicated as hereunder: -1)That the learned trial magistrate misdirected herself in failing to consider that superior courts have established that a police abstract is proof of ownership of motor vehicle unless otherwise proved.2)That the learned trial magistrate erred in law and fact in finding that the appellant had not proved her case on a balance of probability as required by law.3)That the learned trial magistrate erred in law and fact in failing to abide by the conventional principle of burden of proof by discharging this burden upon the uncontroverted evidence of the appellant in the absence of a rebuttal from a respondent.4)That the learned trial magistrate erred in law and fact in failing to consider the appellant’s submissions and in doing so arrived at an erroneous decision.

2. For reasons wherefore, the appellant prays that:i)The appeal be allowed.ii)This Honourable Court do proceed and set aside the judgment of the lower court and award the appellant her claim as prayed in the plaint.iii)This Honourable Court d award the appellant the costs of this appeal and in the lower court.

3. When the appeal came up for hearing, the court directed the parties to file and exchange written submissions and wherein the appellant reiterated his grounds of appeal to the effect that the court faulted the appellant that he did not produce a search document from the Registrar of Motor Vehicles as proof of ownership. That with the consent of the respondent, the police abstract issued to her was produced by consent which consent has not been set aside. The appellant relied on the Court of Appeal case of Joel Muga Opija v East African Sea Food Limited (2013) eKLR and Machakos Civil Appeal No. 76 A of 2010 Francis Mutito Mwangi v F M (A minor suing through her father and next friend MM. Further, the appellant submitted that the respondent in the process of defending the suit, never denied owning the said motor vehicle.

4. On quantum, the appellant submitted that under pain and suffering, an award of Kshs. 100,000/= was adequate; on loss of life, given that the deceased was aged 48 years, it was submitted that an amount of Kshs. 300,000/= was adequate while special damages having been pleaded and proved, an amount of Kshs. 87,065/= should be awarded. In the end, the appellant urged this court to find in her favour.

5. The respondent did not participate in the appeal.

6. As the first appellate court, it is now well settled that the role of this court is to revisit the evidence on record, evaluate it and reach its own conclusion in the matter. [See the case of Selle & Ano. v Associated Motor Boat Co. Ltd (1968) EA 123]. However, it should be appreciated that an appellate court will not ordinarily interfere with the findings of fact by the trial court unless they were based on no evidence at all, or on a misapprehension of it or the court is shown demonstrably to have acted on wrong principles in reaching the findings [See Mwanasokoni v Kenya Bus Service Ltd. (1982-88) 1 KAR 278 and Kiruga v Kiruga & Another (1988) KLR 348]. In re-evaluation of the trial court’s evidence, there is no set format to which this court ought to conform to, but the evaluation should be done depending on the circumstances of each case. [See Oluoch Eric Gogo v Universal Corporation Limited [2015] eKLR and Odongo and Another v Bonge Supreme Court Uganda Civil Appeal 10 of 1987 (UR)].

7. In the case before the trial court, the appellant herein sued the respondent for damages for injuries suffered in a road traffic accident which occurred on 25. 02. 2015 when the deceased was lawfully travelling as a fare passenger in the motor vehicle registration number KBG 216M. The appellant blamed the accident on the negligence on the part of the respondent and/or his authorized driver who drove the aforesaid motor vehicle negligently and or recklessly causing it to collide with the motor vehicle registration number KBA 265K Isuzu Lorry thus occasioning the deceased herein bodily injuries from which she died at Kenyatta National Hospital.

8. I have certainly perused and understood the contents of the pleadings, grounds of appeal, submissions and the authorities referred to by the appellant, and in my view the issue which this court ought to decide on is whether the evidence adduced by the appellant proved her case on a balance of probabilities.

9. The trial court in dismissing the appellant’s case noted that the appellant did not tender sufficient evidence to prove ownership of motor vehicle KBG 216 M and for that, the claim against the defendant/respondent was not sufficiently substantiated. In the end, the court dismissed the plaintiff/appellant’s case as the same was not proved on a balance of probabilities.

10. It is a principle in law that whoever asserts a fact is under an obligation to prove it in order to succeed. In civil cases the standard of proof is the balance of probabilities [See Miller v Minister of Pensions [1947] 2 All ER 372 and Section 107 of the Evidence Act].

11. The suit before the trial court was premised on the tort of negligence. In East Produce (K) Limited v Christopher Astiado Osiro in Civil Appeal No. 43 Of 2001 the Court of Appeal held that: -“It is trite law that the onus of proof is on he who alleges and in matters where negligence is alleged the position was well laid in the case of Kiema Mutuku v Kenya Cargo Hauling Services Ltd 1991 where it was held that “there is as yet no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence.”(See Mount Elgon Hardware v Millers C.A. No. 19 of 1996 and Mwaura Mwalo v Akamba Public Road Services Ltd HCC No 5 of 1989).

12. It follows, therefore, that the legal burden of proof lies on the plaintiff/appellant to prove negligence and the elements therein. This would entail proof of liability and quantum of damages. The aspect of liability will mainly deal with the ownership of the vehicle and how the accident occurred. The aspect of quantum of damages will deal with the compensation.

13. The appellant has submitted that the trial court dismissed her case for the reason that ownership of the motor vehicle was never proved. However, upon perusal of the court record, I note that by a consent dated July 6, 2020, the parties herein consented to production of police abstract without calling the police officer. Further, from the list of documents attached by the plaintiff/appellant, I note that the police abstract was amongst the documents listed by the appellant therein which she equally relied on and further produced before the court at the time of hearing.

14. Section 8 of the Traffic Act 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.”

15. In the case of Superfoam Ltd & Anor v Gladys Nchororo Mbero [2014] eKLR Makau J sitting at Meru High Court cited with approval a Court of Appeal decision in Wellington Nganga Mathiora v Akamba Public Road Services Ltd & Anor [2010] eKLR where it was held:“Where a police abstract was produced and there was no evidence adduced by a defendant to rebut it and not even……………challenged it, the police abstract being a prima facie evidence not rebutted could be relied on as a proof of ownership in the absence of anything else as proof in civil cases was within the standard of probability and not beyond reasonable doubt as in criminal cases……………..”

16. In this case, the appellant sought to rely on the contents of the police abstract to proof the ownership of the suit motor vehicle.

17. It is important first to consider as submitted by the appellant, the circumstances under which a court considers a Police Abstract sufficient proof of ownership. The position taken by various courts is that a Police Abstract when produced as evidence can be sufficient proof of ownership save where it is successfully challenged. In the case quoted by the Respondents herein, Joel Muga Opija v East African Sea Foods Ltd [2013] eKLR the court in affirming this position held:“In our view an exhibit is evidence and in this case the appellant’s evidence that the police recorded the respondent as the owner of the vehicle and Ouma’s evidence that he saw the vehicle with words to the effect that the owner was East African Sea Food were not seriously rebutted by the respondent who in the end never offered any evidence to challenge or even to counter that evidence. We think, with respect that the learned Judge in failing to consider in depth the legal position of what is required to prove ownership erred on point of law on that aspect. We agree that the best way to prove ownership would be to produce to the court a document from the Registrar of Motor Vehicles showing who the registered owner is, but when the Abstract is not challenged and is produced in court without any objection, its contents cannot be later denied.”

18. The court found that the contents of a Police Abstract is sufficient to establish ownership of a motor vehicle but in the instance case, the police abstract that was produced only shows the ownership of the motor vehicle KBA 265K while it is silent on the ownership of motor vehicle KBG 216M which allegedly belongs to the respondent. It is noted that the respondent denied ownership of the aforesaid motor vehicle in paragraph 3 of the defence.

19. It therefore follows that it was incumbent upon the appellant to link the respondent to the ownership of the motor vehicle KBG 216 which unfortunately, was not done. As was held in Kirugi & Another v Kabiya & 3 Others [1987] KLR 347 where the Court of Appeal held:“The burden was always on the Plaintiff to prove his case on the balance of probabilities

20. From the foregoing, I find and hold that the trial magistrate did not err in dismissing the appellant’s case for lack of proof of ownership of the motor vehicle KBG 216M.

21. I therefore dismiss the appeal herein with no order to costs.

DELIVERED, DATED AND SIGNED AT EMBU THIS 20TH DAY OF JULY, 2022. L. NJUGUNAJUDGE……………………………………for the Appellant…………………………………for the Respondent