https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11496

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIAMBU** **CIVIL APPEAL NO E154 OF 2024** **PETER NJERU APPELLANT** **VERSUS** **DUNCAN NDEGWA WATIRI 1ST RESPONDENT** **EDENBRIDGE CAPITAL LIMITED 2ND RESPONDENT** **(*Being an appeal from the Judgment of Hon. N. Nga’ng’a( R.M) delivered on 6th August 2024 in Kiambu Chief Magistrate’s Civil Case E263 of 2023*)** **RULING** 1. The Appellant herein aggrieved by the judgment of the Resident Magistrate appealed against the whole judgment and seeks the following orders:- ***i) That the judgment of Hon N. Ng’ang’a delivered on 6th August 2024 be and is hereby set aside.*** ***ii) That judgment in favour of the appellant/plaintiff be and is hereby entered as prayed in the plaint.*** ***iii) That the costs of this appeal and the costs of the lower court suit be awarded to the appellant /plaintiff.*** ***iv) That interest be awarded to the appellant plaintiff from the date of filing the lower court suit until payment in full.*** 2. The appeal is based on the following grounds:- ***a) that the Learned Magistrate erred in fact and law in making the standard of proof by the plaintiff to be beyond any reasonable doubt instead of that of balance of probability for civil matters, as to whether or not the plaintiff was the owner of Motor vehicle registration number KAK 231 Y.*** ***b) That the defence did not call any evidence whatsoever to controvert the plaintiffs oral and documentary evidence as to his ownership of motor vehicle registration KAK 231 Y and the trial magistrate fell into error in turning the defence advocates submissions in the case to be defence oral evidence or documentary evidence to controvert the plaintiffs oral and documentary evidence.*** ***c) The learned trial Magistrate erred in law and fact in diverting an accident case as to who was to blame between the driver of the motor vehicle registration KAK 231 Y only and KCR 283 E to an issue of who was the owner of motor vehicle KAK 231 Y yet the filed defence by the defendant had not denied that the plaintiff was the owner of motor vehicle registration KAK 231Y but had only denied that the driver of motor vehicle registration KCR 283E was the one to blame for the accident.*** ***d) The learned trial Magistrate erred in law and fact in failing to assess the damages it would have awarded the plaintiiff if it had not dismissed the suit.*** ***e.) The learned trial Magistrate erred in law and fact in holding that the plaintiff was not the beneficial owner of the motor vehicle registration KAK 231 Y yet paragraph 12 in the judgment, she accepted that the plaintiff told her he had brought the vehicle from a selling yard at Donholm area but was yet to transfer it into his name. He went on to state that the motor vehicle was purchased from a yard located in Dohnholm area within Nairobi and that the agreement was between the yard owner and that appellant.*** **Analysis and Determination** 3. I have carefully considered this memorandum of appeal, the record of proceedings before the lower court as well as the written submissions filed by the appellant. 4. This is a first appeal. It is settled law that the duty of the first appellate court is to re-evaluate the evidence which was adduced in the subordinate court both on points of law and fact and come up with its own findings and conclusions [see Peters -vs- Sunday Post Limited [1958] E.A 424] 5. In *SELLE and Another -vs- Associated Motor Boat Company Ltd & Others [1968] 1. E.A 123* it was stated as follows:- “…………………….this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind [the fact] that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.” 6. Likewise in *Gitobu Imyanyara & 2 Others -vs- Attorney General [2016] eKLR,* the court of Appeal stated thus;- “An appeal to this court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” 7. Therefore the appropriate standard of review in cases of appeal can be summarized in the following three principles:- 1) On first appeal the court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions. (2)In reconsidering and re-evaluating the evidence of the first appeal court must bear in mind and give due allowance for the fact that the trial court had the advantage of seeing and hearing the witnesses. (3)It is not open to the first appellate court to review the findings of a trial court simply on the basis that it would have reached a different conclusion had it been hearing the matter for the first time. 8. Vide a plaint dated 26th July 2023, the plaintiff sought for judgment against the defendant for special damages, cost of the suit and interest from the date of the accident. The cause of action arose as a result of an accident that took place on or about the 26th March 2023. The plaintiff averred that he had parked his motor vehicle Registration KAK 231 Y off the Ndumberi- Githunguri Road , when due to the negligence of the Respondents driver, servant or agent in driving motor vehicle registration KCR 283 E , caused it to crush onto motor vehicle KAK 231Y and thee mort vehicle was extensively damaged. 9. The police visited the scene, and the appellant car was taken for inspection, and later, he incurred special damages of Ksh 141,550, as particularized in paragraph 5 of the plaint. The appellant produced a police abstract to confirm that the accident had taken place, and that the outcome of investigations was that the driver of KCR 283 E was to blame for the accident. 10. Additionally, the appellant produced a log book in the name Moses Otiep, and a car sales agreement, showing that the car was sold to Peter Njeru on 17th august 2020. The Appellant further copy of records as proof that Motor Vehicle KCR 283 E is registered in the name of Duncan Ndegwa Watiri and Edenbridge Capital Limited. 11. In cross examination, the appellant stated that in reexamination, he pointed out to the fact that the police abstract had indicated that the motor vehicle belonged to him, and that he had insured with Orient Insurance Company. 12. In support of his case, he called the evidence of P.C Raphael Musyoka, a police officer based at Kiambu Police Station. He produced the police abstract issued by Kiambu police station confirming the occurrence of the accident. 13. The defendant did not call any evidence in support of their case. Parties filed their respective submissions in the lower court proceedings. 14. It is not disputed that the accident took place on the date indicated in the police abstract. The oral evidence of the appellant was supported by the police officer. The Respondent has not called any evidence to the contrary. In her judgment, the learned trial magistrate does not dispute that the appellant incurred cost of repair after the accident. The appellant produced a receipt in respect of towing charges and an assessment report dated 3rd April 2023. 15. The trial magistrate in her judgment dismissed the appellant case because the appellant had not proved that he was the registered owner of the motor vehicle. She went on to rule that the only document that bore the appellant’s name was the police abstract, which in her view was not conclusive evidence of ownership. In regard to the sale agreement, the same was disregarded by the court, based on the fact that the agreement was between the appellant and a third party, and not the registered owner as indicated in the log book. While dismissing the appellant’s case, she concluded that the appellant had failed to prove if he was the registered /beneficial owner of the motor vehicle, and hence lacked locus standi to file the suit. 16. It is trite law that he who alleges must prove. In law the burden of proof lies upon the party who asserts the existence of a fact or set of facts. Section 107 of the [*Evidence Act*](https://kenyalaw.org/akn/ke/act/1963/46) Cap 80 Laws of Kenya provides as follows:- “Burden of Proof 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.” 17. In the case *of Evans Nyakwana -vs- Cleophas Bwana Ongaro [2015] eKLR,* it was held that:- “As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107(1) of the [*Evidence Act*](https://kenyalaw.org/akn/ke/act/1963/46), Chapter 80, Laws of Kenya. Furthermore, the evidential burden is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of the law of proof of that fact shall lie on any particular person…………….” 18. In Civil Cases the law requires that a plaintiff prove their claim on a “balance of probabilities Master of the Rolls Lord Denning, in Miller -vs- Minister Of Pensions 1947 2 ALL ER in discussing the burden of proof in Civil cases stated as follows:- “That degree is well settled, it must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it more probable than not; the burden is discharged but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough, so any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties are equally (un) convincing the party bearing the burden of proof will lose; because the requisite standard will not have been attained.” 19. The question as to what amounts to a balance of probabilities was also discussed in the case of *William Kabogo Gitau -vs- George Thuo & 2 Others [2010], KLR 526*, where Hon. justice Luka Kumaru (as he then was), stated as follows:- “In ordinary civil cases a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.” 20. As stated earlier the Respondent did not avail any evidence at all before trial court to prove that the Respondent did not cause the accident by driving negligently. As such, the judgment on liability is hereby in favor of the appellant. 21. The main question begging for answers before this court is whether there was sufficient evidence pointing to the appellant as the owner of the motor vehicle registration number KAK 321 Y. 22. Under section 8 of the [*Traffic Act*](https://kenyalaw.org/akn/ke/act/1953/39), proof of ownership of a motor vehicle is by the registration of a person as the owner of the motor-vehicle, unless proved otherwise. My understanding of this section is that the registration of the motor-vehicle is not conclusive proof of ownership but only prima facie evidence of title to a motor vehicle. The person in whose name the vehicle was registered is presumed to be the owner thereof unless proved otherwise. This finds fort from the views expressed by this court in *Securicor Kenya Ltd vs. Kyumba Holdings Ltd [2005] eKLR* as follows: “Our holding finds support in the decision in OSAPIL VS. KADDY [2000] 1 EALA 187 in which it was held by the Court of Appeal of Uganda that a registration card or logbook was only prima facie evidence of title to a motor vehicle and the person whose name the vehicle was registered was presumed to be the owner thereof unless proved otherwise. The appellant had, indeed, proved otherwise.” 23. Section 8 of the [*Traffic Act*](https://new.kenyalaw.org/akn/ke/act/1953/39) provides that the person in whose name a motor vehicle is registered is unless the contrary is proved, to be deemed to be the owner of the vehicle. The principle envisaged in this section is that there can be actual, possessory and beneficial ownership of a motor vehicle which exists independently of registration. 24 .In [*Samuel Mukunya Kamunge v John Mwangi Kamuru, Nyeri H.C. Civil Appeal No. 34 of 2002*](https://new.kenyalaw.org/akn/ke/judgment/kehc/2005/1077), Okwengu J. (as she then was) held that: - “It is true that a certificate of search from the Registrar of Motor vehicles would have shown who was the registered owner of motor vehicle according to the records. That however, is not conclusive proof of actual ownership of the motor vehicle as section 8 of the [*Traffic Act*](https://new.kenyalaw.org/akn/ke/act/1953/39) provides that the contrary can be proved. This is the recognition of the fact that often times motor vehicles change hands but the records are not amended.” 25. On the same issue Ojwang J. (as he then was) *in Nancy Ayemba Ngaira v Abdi Ali, Msa HCCA No. 107 of 2008 (2010) eKLR* held that: “There is no doubt that the registration certificate obtained from the registrar of motor vehicles will show the name of the registered owner of a motor vehicle. But the indication thus shown on the certificate is not final proof that the sole owner is the person whose name is shown. Section 8 of the [*Traffic Act*](https://new.kenyalaw.org/akn/ke/act/1953/39) is fully cognizant of the fact that a different person or different other persons, may be the de facto owners of the motor vehicle – and so the Act has an opening for any evidence in proof of such differing ownership to be given. And in judicial practice, concepts have arisen to describe such alternative forms of ownership: actual ownership; beneficial ownership, possessory ownership. A person who enjoys any of such other categories of ownership, may for practical purposes, be much more relevant than the person whose name appears in the certificate of registration; and in the instant case at the trial level, it had been pleaded that there was such alternative kind of ownership. Indeed, the evidence adduced in the form of the police Abstract, showed on a balance of probabilities, the 1st defendant was one of the owners of the matatu in question.” 26. In *Jared Magwaro Bundi & Another v Primarosa Flowers Limited (2018) eKLR* the Court of Appeal reviewed previous cases on beneficial ownership of motor vehicle and held that: “It was therefore held in Muhambi Koja (supra) that section 8 of the [*Traffic Act*](https://new.kenyalaw.org/akn/ke/act/1953/39) recognizes registration book or the Registrar’s extract of the record as prima facie evidence of title to a vehicle and the persons in whose name the vehicle is registered is presumed to be the owner thereof unless the contrary is proved. The burden is discharged if, on a balance of probabilities, it is shown that as a matter of fact the vehicle had been transferred but not yet registered, to a de facto owner, a beneficial owner or a possessory owner. Such an owner though not registered for practical purposes may be more relevant than that in whose name the vehicle is registered. The position taken by the court in Jael Muga Opija (supra) and Mohamed Koja (supra appears to us to accord with modern thinking and jurisprudence where the law is encouraging courts to interpret the law governed more by substance than the technical chains of form, the latter which does not ordinarily look at the justice of a case …” 27. In *Benard Muia Kilovoo v Kenya Fresh Produce Exporters [2020] eKLR* it was stated as follows:“ 41. The Court of Appeal in these binding decisions is clearly stating: - (i)That the presumption that the person registered as owner of the motor vehicle in the logbook is the actual owner is rebuttable. (ii)Where there exists other compelling evidence to proof otherwise then the court can make a finding of ownership that is different from that contained in the logbook. (iii)Each case must however be considered in its own peculiar facts.” 28. The appellant has proved that he had possessory ownership of the motor vehicle. He has also demonstrated on a balance of probabilities that he had purchased the motor vehicle e from a yard, and that the sale agreement was between him and the owner of the yard. 29. Additionally, he was the one in actual possession and use of the motor vehicle. This explains the reason why the police abstract indicates that the appellant as the owner of the motor vehicle. As a beneficial owner of the motor vehicle, he caused the motor vehicle to be towed and a receipt was issued in his name. The assessment report was also issued in his name. 30. The appellant did not solely rely on the police abstract, but in support provided a sale agreement to prove that he had purchased the motor vehicle and was the beneficial owner of the motor vehicle. 31. From the fore going, I find that the trial magistrate erred in finding that the appellant had not proved his case to a balance of probabilities. I hereby set aside the finding and enter judgment in favour of the appellant against the respondent. 32. On special damages, the amount of Ksh. 141,550/= was pleaded and the lower court did not assess the same. With special damages, the rule is strict and somewhat mathematical. The court has to discern pleaded damages and proceed to find their proof. It is not based on estimates. 33. The Court of Appeal in *Jogoo Kimakia Bus Services Ltd vs. Electrocom International Ltd [1992] KLR* 177 stated that: “The law on damages stipulates various types of damages. The distinction between general and special damages is mainly a matter of pleading and evidence. General damages are awarded in respect of such damages as the law presumes to result from the infringement of a legal right or duty. Damages must be proved but the claimant may not be able to quantify exactly any particular items in it. Special damages are the precise amount of pecuniary loss which the claimant can prove to have followed from the particular facts set out in the pleadings. They must be specifically pleaded.” 34. Special damages are thus very specific and constitute liquidated claim which must be pleaded and proved. This court’s task thus entails whether the trial court failed to award special damages that were pleaded and proved. In *Joseph Kipkorir Rono vs. Kenya Breweries Limited & Another Kericho HCCA No. 45 of 2003*, Kimaru, J held that: “In current usage, special damage or special damages relate to part pecuniary loss calculable at the date of the trial, whilst general damages relate to all other items of damage whether pecuniary or non- pecuniary. If damages are special damages they must be specifically pleaded and proved as required by law. For a loss to be calculable at the date of trial it must be a sum that has actually been spent or loss that has already been incurred…….” 35. I find that the amount pleaded was the amount proved. The Appellant produced documentary evidence in support of his claim for special damages which was not opposed by the Respondent. The special damages of Ksh 141,550 is hereby awarded as prayed, to be paid with interest from the date of filing the suit. 36. The issue of costs is governed by Section 27 of the [*Civil Procedure Act*](https://new.kenyalaw.org/akn/ke/act/1924/3), which provides as follows: (1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. (2)The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. 37. The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of *Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR)*, as follows: “18.It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice.” 38. In the circumstances, the appeal having succeeded, the respondents shall bear the costs of the appeal and that in the lower court. **Determination** 39. The upshot of the foregoing is that I make the following orders: - ***a).The appeal is allowed.*** ***b) That the judgment of Hon N. Ng’ang’a delivered on 6th August 2024 be and is hereby set aside.*** ***c) That judgment in favour of the appellant/plaintiff be and is hereby entered as prayed in the plaint.*** ***d) That the costs of this appeal and the costs of the lower court suit be awarded to the appellant /plaintiff.*** ***e) That interest be awarded to the appellant plaintiff from the date of filing the lower court suit until payment in full.*** **DELIVERED, DATED AND SIGNED AT ON 24th DAY OF JULY, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.** **MARTHA MUTUKU** **JUDGE** In the presence of: - N/A for the Appellant N/A for the Respondent Court Assistant – Mr. Zadock