https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12290

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS CIVIL APPEAL NUMBER **124** OF 2016 DAVID M. MULANI……………..………………………………APPELLANT -VERSUS- STEPHEN MUSYIMI KILONZO...……......…………………RESPONDENT ***(Being an appeal from judgement and decree of Honourable Hon. L.Mbugua CM, dated 5-10-2016 in Machakos Chief Magistrate Court civil case no. 1195 of 2008)*** **JUDGMENT** The respondent filed suit in the trial court claiming general and special damages arising from an accident that occurred on 21-04-2008 involving motor tricycles registration numbers KAZ 287B and KAZ 092B. The claim was that the respondent was on the said date a lawful passenger in the former when near St Valentine High School, the latter was so negligently driven that it veered off its lane and encroached onto the lane of the former as a result of which the respondent sustained bunty injury to the head, blunt injury to the abdomen, cut wound on the lower limb and frequent headaches. Tricycle registration number KAZ 092B (hereinafter smiley referred to as ‘KAZ 092B) was registered to one Wambua Nzyuko who was a co-defendant in the said suit and beneficially owned by the appellant. The appellant and Wambua Nzyuko filed a joint defence dated 5th December 2008 in which they denied the claim and pleaded negligence on the part of tricycle registration number KAZ 287B (hereinafter smiley referred to as ‘KAZ 287B). Later, the appellant filed his own defence dated 28-09-2011 which was not much different from the previous joint one following a court order dated 26-09-2011. After a full hearing, the trial court found that the driver of KAZ 092B was to blame. She also affirmed that the same was registered to Wambua Nzyuko and that the appellant was the beneficial owner and consequently entered liability jointly and severally against the appellant and Wambua Nzyuko at 100 per cent. The trial court proceeded to award the appellant Kshs 140,000.00 in general damages for pain and suffering plus costs and interest. Being aggrieved by the trial court’s finding, the appellant filed a memorandum of appeal which consists of 7 grounds which I collapse to two as follows; 1. The court erred in finding that the appellant was the beneficial owner of the vehicle yet the evidence produced was not sufficient to prove that fact. 2. The court erred in failing to consider whether the appellant herein was the same David M. Mulani referred to in the police abstract. The appellant had filed two sets of submissions. One set was dated 9th February 2026 and the other 19th September 2023. The appellant’s advocate asked me to consider the former version which I have done. I have also considered the respondent’s submissions dated 20th February 2026. It is clear to me from the appellants submissions and the memorandum of appeal that he does not challenge the finding on which vehicle was to blame for the accident neither does he challenge the quantum of damages. This being a first appeal, I have the obligation to re-analyse the evidence produced before the trial court and come to my own independent conclusion but keep in my mind that the trial court unlike me had the advantage of taking the evidence and observing the demeanour of the witnesses. Based on this, I do believe that the evidence I am only required to re-consider is that which touches on the appellant being the beneficial owner of KAZ 092B. According to the proceedings, the respondent’s witness one PC Benjamin Kimoyo produced a police abstract which showed that KAZ 092B belonged to David M. Mulani and that the driver of the same was charged with careless driving and fined Kshs 3,000.00. The respondent produced a copy of records which showed that the vehicle was registered to the Wambua Nzyuko. In cross-examination, the respondent admitted that David Mulani was not the registered owner of the vehicle. The police officer who testified on behalf of the respondent told the court that the accident was reported to Machakos traffic base and that the driver was charged with the offence of careless driving and that KAZ 092B belonged to David. M. Mulani as per the police abstract. He was not the investigating officer. The witness stated that it is the owners of the motor vehicles who supply the police with information about the vehicle and that the information contained in the police abstract he had produced was in the station’s occurrence book. He added that he did not know the parties to the suit. On his part, the appellant told the court that he did not know what happened on the alleged date of the accident. He was working in Kajiado police station and on a date he did not disclose, he got information from Thoronjo Advocates who called and told him that there was a case in court concerning his vehicle. He claimed that he had tuktuk registration number KAZ 069B but the number he was told was KAZ 092B. Upon being informed, he went to the offices of Thoronjo Advocates and found that the vehicle involved in the case was not his and he proceeded to do a search on KAZ 092B and found that it was owned by Wambua Nzyuko and Family Bank. He produced a copy of records to that effect. He added that his driver was one Michael Muteti who was operating along Wote road. On cross-examination, he stated that he was a police officer and insisted that the vehicle was not his and he did not know how the police got the information that he was the owner. He added that investigations results are usually found in the police file and that he did not go to the police station. He admitted that beneficial owners are always noted or recorded in the police abstract. In its judgment, the trial court observed that the information in the police abstract was in the domain of public documents hence, he had no reasons to doubt it. In my view, this was a wrong approach. Whereas it is true that a police abstract is made by a public officer, it must be noted that the primary information is the occurrence book. The information in the police abstract cannot be presumed as genuine public document under Section 83 of the Evidence Act as it is meant and filled for a specific event or occurrence whose details and circumstances may or may not be contested. The presumption under this Section is rebuttable where the contents of the document is contested. In this matter, the appellant was disputing the contents of the police abstract and the contestation could only be resolved by producing the occurrence of book or the police investigations file which must have contained more information on the vehicle such as the insurance certificate and details of how the appellant was connected to the vehicle. This is especially so since the police officer who produced the abstract was not the investigating officer. If there was evidence to establish the relationship between the driver of the vehicle and the appellant, there would have been a justification for linking the appellant to the vehicle. A police abstract cannot by itself be proof of ownership unless it is supported by additional evidence. I find the circumstances of this case mirroring those in ***Fredrick Odongo Otieno v Al-Husnain Motors Limited [2020] KEHC 821 (KLR).*** In the cited authority, while dealing with issue of ownership, Justice R.E. Aburili stated as follows; *‘In this case the appellant did not produce a search from the Registrar of Motor-vehicle as proof of ownership. He neither produced in evidence an agreement showing that the accident motor vehicle was beneficially owned by the Respondent. Instead, he relied on a Police abstract which production was not challenged by the respondent” but the respondent produced documents showing that as at the time of the material accident the vehicle was beneficially owned by Odhaya Trading Company as the importer. The question therefore is whether the respondent can deny the contents in the police abstract See the case of****Joel Muga Opinja -vs- East Africa Sea Food Limited (2013) eKLR (supra).*** *I find no evidence on record to show that the police abstract was produced with the sole purpose of proving ownership of the accident motor vehicle. It was in my humble view, produced to show that an accident occurred as alleged and that the police were made aware and they carried out investigations. The police did not adduce evidence that the particulars contained in the police abstract were accurate as far as ownership of the accident motor vehicle was concerned.* The copies of record produced by the appellant and the respondent showed that KAZ 092B belonged to Wambua Nzyuko who was a co-defendant in the suit in the subordinate court. Wambua Nzyuko was a party to the suit but did not testify although he had a defence on record. In its judgment, the trial court observed that it was normal to have a vehicle registered to one person but beneficially belong to another. She gave an instance where one had purchased a vehicle but formal transfer was not done. That may be so but in this case, there was no proof or evidence led to show that the said Wambua Nzyuko had sold the vehicle to the appellant and as such the court was not justified to link the vehicle to the appellant. The trial court appreciated that the vehicle was registered to Wambua Nzyuko but went further to state that the appellant did not adduce evidence to challenge the plaintiff’s pleadings and PW3’s evidence that he was the beneficial owner. I have already held that there was no evidence to show that the appellant was the beneficial owner. It is trite that pleadings cannot stand without support of evidence. The fact that the respondent pleaded that the appellant was a beneficial owner placed the burden of proof of that fact on the respondent. The appellant had no burden to prove that he was not the beneficial owner. His onus would have been to disapprove or rebut any evidence produced to the effect of his ownership which evidence I have found not to have been sufficient. The position in law is that the burned of proof of any state of affairs is on the person who wishes the court to believe in their existence. It was the respondent who wanted reliefs in his favour from the court and the duty was on him to adduce evidence in proof of his pleaded facts. It was held in ***Jimcab Services Limited v Mueke & another (suing as the Legal Representatives of the Estate of the Late Nicholas Malombe Wayua (Deceased) & another [2025] KEHC 13198 (KLR)*** that; *‘The burden of proof is on a party wishing that the court gives them judgment. The same is set out in extensio under sections 107 -109 of the*[*Evidence Act*](https://kenyalaw.org/akn/ke/act/1963/46)*, Cap 80 Laws of Kenya as follows:* *107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.* *(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.* *108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.* *109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”* In view of the above, it is my considered finding that the appeal is merited and the same is allowed. I order as follows; 1. Judgement dated 5-10-2016 in Machakos Chief Magistrate’s Court civil case number 1195 of 2008 is hereby set aside to the extent that the respondent’s suit against the appellant (the 1st defendant in the suit) is dismissed. 2. Judgement shall remain entered in favour of the respondent against the appellant’s co-defendant in that suit. 3. The appellant shall have the costs of this appeal. Dated signed and delivered at Nairobi this **29th** day of **July** 2026. **B.M. MUSYOKI** **JUDGE OF THE HIGH COURT.** Judgment delivered in presence of Miss Gicharu for the respondent and in absence of the appellant