https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12212

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUNGOMA** **CIVIL APPEAL NO. E121 OF 2024** **PLATINUM CREDIT LIMITED...............................................APPELLANT** **VERSUS** **ROBERT WAWERU (t/a Antique Auctioneers) ...........1ST RESPONDENT** **NAFTALI AWINO OBAGE...........................................2ND RESPONDENT** **ENOSH OKOTH ODERA...............................................3RD RESPONDENT** **(Being an Appeal from the Ruling and Orders of the Magistrate's Court at Bungoma, the Hon. T. M. Olando, PM, delivered on the 15th day of August 2024 in CMCCMISCCA No. E157 of 2024.)** **JUDGMENT** 1. This appeal arises from the Ruling and Orders of the Magistrate's Court at Bungoma (Hon. T. M. Olando, Principal Magistrate) delivered on 15th August 2024, in **Chief Magistrate's Court Miscellaneous Civil Application No. E157 of 2024**. By that decision, the trial court allowed the application filed by the 3rd Respondent, Enosh Okoth Odera (the "Objector"), dated 15th July 2024, and ordered the release of Motor Vehicle Registration Number KDN 710M Nissan X-Trail to him. Further to that, the court dismissed the Application by the Appellant, Platinum Credit Limited, dated 17th July 2024, which sought a review, nullification, or modification of the trial court's previous Ruling issued on 5th July 2024. 2. The proceedings before the trial court were initiated by an Ex Parte Notice of Motion dated 18th April 2024, filed by Robert Waweru Maina, operating as Antique Auctioneers (the 1st Respondent), a licensed auctioneer acting on the instructions of the Appellant. The application sought orders to dispense with formal service, to have the Officer Commanding Station in Bungoma, or any other police officer of similar rank, provide security for the auctioneer during the repossession of the vehicle, and to authorize the auctioneer, accompanied by police officers, to forcibly open or break any external doors to access the premises where the vehicle is located. 3. The application was supported by the affidavit of Mr Robert Waweru Maina, who stated that he had received a letter of instruction from the Appellant dated 3rd March 2024 to recover loan arrears from the 2nd Respondent, Mr Naftali Awino Obage, the registered borrower and the Judgment Debtor in the proceedings below. 4. He confirmed that he served a proclamation on the 2nd Respondent on 20th March 2024, and that the 2nd Respondent had failed to settle the outstanding balance despite demand. On 18th April 2024, the trial court granted the orders sought, ex parte, dispensing with service and authorising the repossession of the vehicle with police assistance. 5. On 26th April 2024, the 1st Respondent, acting in accordance with those orders, attached the vehicle at premises located in Nyakach, Kisumu County, occupied by the 3rd Respondent. The 3rd Respondent had not been made a party to the Miscellaneous Application and had not been served with any legal process prior to the attachment. 6. The 3rd Respondent subsequently submitted a Notice of Objection dated 29th April 2024 pursuant to **Order 22 Rule 51 of the Civil Procedure Rules**, accompanied by a Notice of Motion application of the same date supported by his own affidavit. He asserted that he was the legitimate owner of the vehicle, having acquired it from the 2nd Respondent for a consideration of Kshs. 2,721,036. 7. He stated that he had settled the purchase price in full and taken possession of the vehicle. Furthermore, he alleged that the 2nd Respondent, without his knowledge or consent, used the vehicle as security for a loan obtained from the Appellant. He submitted, among other documents, an invoice, a bill of lading, a shipping order, and correspondence purportedly related to the purchase. Additionally, he requested orders to stay the execution of the warrants of attachment and to restrain the sale of the vehicle. 8. The 1st Respondent opposed the application through Grounds of Opposition dated 14th May 2024. He contended that the application was incompetent for want of a decree capable of sustaining objection proceedings under **Order 22 Rule 51 of the Civil Procedure Rules**, that the trial court had become functus officio upon issuing the orders of 18th April 2024, and that the 3rd Respondent had not established a legal or equitable interest in the vehicle, which, according to the logbook then before the court, was jointly registered in the names of the 2nd Respondent and the Appellant. 9. The 2nd Respondent filed a Reply to the Objector's Application on 20 May 2024, confirming that he had obtained a loan from the Appellant on 6 November 2023 and used the vehicle as collateral. However, he averred that he had previously sold the vehicle to the 3rd Respondent, a sale that predates the loan, and he failed to disclose this prior sale to the Appellant. 10. The 3rd Respondent filed a Supplementary Affidavit dated 28th May 2024, reaffirming his claim of ownership and presenting additional correspondence purported to evidence the sale transaction. The 1st Respondent filed a Replying Affidavit sworn by Richard Simbala, its Assistant Legal Officer, on 4th June 2024, asserting that the Appellant possesses a beneficial interest in the vehicle by virtue of the logbook, and that there is no record of a valid sale agreement between the 2nd and 3rd Respondents. Subsequently, the parties filed their written submissions. 11. In its ruling delivered on 5th July 2024, the trial court observed that it had thoroughly examined the documents submitted by the 3rd Respondent and was convinced that he had purchased the vehicle from the 2nd Respondent. The court also noted that the copy of the logbook presented before it listed only the name of the 2nd Respondent. 12. Based on this evidence, the court declared the 3rd Respondent to be the rightful owner of the vehicle, issued an injunction restraining the 1st Respondent and its agents from selling the vehicle, and directed each party to bear its own costs. 13. On 15th July 2024, the 3rd Respondent filed a further application seeking mandatory orders for the release of the vehicle from the storage yard where it was being detained, asserting that despite the ruling of 5th July 2024, the Appellant had refused to authorize its release. 14. The Appellant, dissatisfied with the said ruling, filed an application dated 17th July, 2024, seeking a review, setting aside, or modification of that ruling, on the grounds that the trial court relied on an outdated logbook generated on 1st November, 2023, indicating the 2nd Respondent as the sole registered owner, whereas a subsequent logbook, generated on 6th December, 2023, and already on the court record as an annexure to the application dated 18th April 2024, demonstrated that the vehicle was registered jointly in the names of the 2nd Respondent and the Appellant. 15. Both applications were canvassed together by way of written submissions. By its ruling delivered on 15th August 2024, and the order issued on 16th August 2024, the trial court determined that its ruling of 5th July 2024, established that the 3rd Respondent had purchased the vehicle from the 2nd Respondent, that the registration of the vehicle in the joint names of the Appellant and the 2nd Respondent was deemed "fraudulent,” and that no apparent error existed on the face of the record warranting a review. 16. Consequently, the trial court dismissed the Appellant's application dated 17th July 2024, with costs, and granted the 3rd Respondent's application dated 15th July 2024. It issued a mandatory order for the vehicle's release to the 3rd Respondent, imposed restraining orders against the 1st Respondent, and mandated that the storage yard release the vehicle; failure to do so would result in break-in orders against the yard. 17. Aggrieved, the Appellant filed a Memorandum of Appeal dated 20th August 2024, on the following grounds: 1. **That the learned Magistrate erred in law and in fact in failing to appreciate the proper effect and purport of the evidence, arriving at a decision not supported by, or against the weight of, the evidence on record;** 2. **That the learned Magistrate erred in holding that the Appellant's application dated 17th July 2024 lacked merit without appreciating the weight of the evidence showing that the Appellant was a beneficial owner of the vehicle;** 3. **That the learned Magistrate erred in holding that the vehicle should be released to the custody of the 3rd Respondent, failing to appreciate the true meaning and effect of section 8 of the Traffic Act;** 4. **That the learned Magistrate misdirected himself in entertaining the objector proceedings dated 29th April 2024 and the application dated 17th July 2024, when the court had become functus officio after issuing orders on the miscellaneous application dated 18th April 2024;** 5. **That the learned Magistrate failed to appreciate that there was no proof of a valid written or oral agreement for sale of the vehicle between the 2nd and 3rd Respondents, and did not sufficiently consider that, per the logbook and NTSA search, the Appellant was a beneficial owner with the 2nd Respondent as registered owner and debtor;** 6. **That the learned Magistrate erred in considering the objector proceedings despite reservations that the court lacked jurisdiction, as such proceedings could only be handled in a substantive suit with a proper decree; and** 7. **That the learned Magistrate erred in failing to take into account the alleged error in the Ruling of 5th July 2024, concerning the logbook evidence.** 18. The Appellant prayed that the application dated 17th July 2024 be granted to the extent that the 3rd Respondent's application dated 29th April 2024 be deemed unfounded and consequently dismissed; that the ruling issued on 15th August 2024 be set aside; that this Honourable Court declare that the trial court lacked jurisdiction to entertain the applications dated 29th April 2024 and 17th July 2024; and that costs be awarded accordingly. 19. Simultaneously with the Memorandum of Appeal, the Appellant filed a Notice of Motion application dated 20th August 2024, under a certificate of urgency, seeking a stay of execution of the trial court's orders pending the hearing and determination of the appeal. Furthermore, the application sought an order that the vehicle be held in a neutral location pending the appeal. 20. The application was opposed by the 2nd and 3rd Respondents through replying affidavits. By a Ruling delivered on 23rd January 2025, this Court granted a stay of execution of the Ruling and Orders of 15th August 2024, pending the hearing and determination of the appeal, and directed that the vehicle be stored at a neutral yard within Bungoma County. The Appellant was ordered to bear the storage costs, and the parties were instructed not to interfere with the vehicle pending the appeal. This order is not subject to this appeal and remains in force. 21. The court directed thereafter that the appeal be canvassed by way of written submissions filed by the Appellant, the 2nd Respondent and the 3rd Respondent. The 1st Respondent did not file submissions on the appeal. **Appellant's Submissions** 1. Counsel for the Appellant submitted that the trial court lacked jurisdiction to entertain the objector proceedings and the subsequent applications dated 15th and 17th July 2024, because the application dated 18th April 2024 was a facilitative miscellaneous application for repossession, not a suit culminating in a decree. 2. Consequently, in the absence of a decree, there could be no attachment in execution of a decree capable of grounding objection proceedings under **Order 22 Rule 51 of the Civil Procedure Rules**. Furthermore, it was argued that the trial court became *functus officio* upon issuing the orders of 18th April 2024. 3. Counsel further submitted that the 3rd Respondent did not discharge the burden of proving a legal or equitable interest in the vehicle. It was contended that the sale agreement exhibited by the 3rd Respondent related to a different vehicle, a Mazda CX5, and not the Nissan X-Trail in issue. 4. That none of the documents relied upon by the 3rd Respondent identified the vehicle by its registration, chassis, or engine number. That the bill of lading indicated chassis number NT32-061866, whereas the logbook for the vehicle in issue bore chassis number T32-041169, representing a discrepancy that was never resolved. 5. That furthermore, the invoices produced bore the same invoice number despite bearing different dates on different and they did not also specify the vehicle in question. That no M-Pesa or bank statements were produced to corroborate the alleged payment and additionally, the screenshots and email correspondence relied upon by the 3rd Respondent were inadmissible for want of the certificate required **under section 106B of the Evidence Act.** 6. It was further submitted that Section 8 of the Traffic Act designates the individual in whose name a vehicle is registered as the prima facie owner, and that the logbook dated 6th December 2023, which is already on record, indicated that the vehicle was registered jointly in the names of the 2nd Respondent and the Appellant. 7. That this effectively establishes the beneficial interest of the Appellant, as the 3rd Respondent has not presented any evidence to rebut this presumption nor has, he made any application to the Registrar of Motor Vehicles to formalize the alleged transfer to himself. 8. Counsel contended that the trial court's conclusion that the joint registration was fraudulent was made without any pleadings or proof of fraud by any party. Furthermore, fraud being a grave allegation, the law requires that it must be explicitly pleaded and substantiated to a standard exceeding mere balance of probabilities. 9. Regarding the review application, counsel contended that the trial court erred in dismissing it. This was due to the existence of a subsequent logbook, which was already part of the court record but appeared to have been overlooked in the ruling of 5th July 2024. Counsel argued that this oversight constituted an apparent error on the face of the record, as defined by **section 80 of the Civil Procedure Act** and **Order 45 Rule 1 of the Civil Procedure Rules.** **2nd Respondent's Submissions** 1. Counsel for the 2nd Respondent emphasized that this Court, when acting as a first appellate court, should exercise caution before overturning the trial court's findings of fact. They pointed out that such interference is only justified if it is proven that the trial court made a fundamental error, considered irrelevant matters, or reached a conclusion that no reasonable court would agree with. 2. This perspective is supported by references to the cases of **Selle & Another v Associated Motorboat Co. Ltd & Others [1968] EA 123, Peters v Sunday Post Limited [1958] EA 424, Mwanasokoni v Kenya Bus Services Ltd [1985] KLR 931,** and **Kiruga v Kiruga & Another [1988] KLR 348.** 3. It was contended that the 3rd Respondent had presented the trial court with evidence of purchase, payment, and possession that sufficiently satisfied the threshold established under **Order 22 Rule 51 of the Civil Procedure Rules**. This threshold does not necessitate proof to the criminal standard. Additionally, the doctrine of bona fide purchaser for value without notice, as elucidated in **Katende v Haridar & Company Limited [2008] 2 EA 173**, was invoked to safeguard the position of the 3rd Respondent. 4. Further submissions, citing **Osapil v Kaddy [2000] 1 EA 187 and Joel Muga Opija v East African Sea Food Limited [2013] eKLR**, indicated that the presumption of ownership under **Section 8 of the Traffic Act** is rebuttable and that ownership constitutes a question of fact, not solely confined to registration documents. 5. Lastly, relying on **Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri [2014] eKLR**, it was emphasized that equity seeks to protect a purchaser who has paid consideration and taken possession, notwithstanding potential formalities of registration that may remain outstanding. 6. On review, counsel submitted that the matters raised by the Appellant did not disclose an error apparent on the face of the record but required an evaluative comparison of competing documents properly reserved for an appeal, citing **National Bank of Kenya Limited v Ndungu Njau [1997] eKLR** and **Pancras T. Swai v Kenya Breweries Limited [2014] eKLR.** 7. Regarding jurisdiction, counsel argued that while the doctrine of *functus officio* is significant for ensuring finality, it is not absolute and must be subordinate to the prevention of injustice resulting from the enforcement of a court's own orders. This was supported by the case **Telkom Kenya Limited v John Ochanda [2014] eKLR.** 8. Counsel further contended that the Appellant, having invoked the trial court's jurisdiction to secure repossession orders, could not then oppose the exercise of the same jurisdiction to oversee or regulate the consequences of those orders. 9. Additionally, the counsel emphasized that the overriding objective under **sections 1A, 1B, and 3A of the Civil Procedure Act,** as well as **Article 159(2)(d) of the Constitution**, mandates that substantive justice shall not be obstructed by procedural technicalities, citing **Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR** and **Raila Odinga & 2 Others v Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR.** 10. Counsel further relied on the precedents set in **Simiyu v Sinino [1985] eKLR and National Bank of Kenya Limited v Joly Family Stores & Another [2005] eKLR** to argue that an auctioneer executing a court order functions as an agent of the court and is obliged to act within the bounds of the law. 11. It was contended that the attachment of the 3rd Respondent's vehicle by an auctioneer lacking a license to operate in Kisumu County was inherently unlawful. Additionally, it was asserted that no adverse finding or liability could justifiably be imposed on the 2nd Respondent in this appeal, given that no claim for debt, breach of contract, or fraud was pleaded or adjudicated below. The participation of the 2nd Respondent was limited to the objection proceedings. The 2nd Respondent requested that the appeal be dismissed with costs and that the ruling dated 5th July 2024 be upheld **3rd Respondent's Submissions** 1. Counsel for the 3rd Respondent substantially aligned himself with the position of the 2nd Respondent, asserting that the trial court appropriately evaluated the evidence presented, including invoices, proof of payment, correspondence, and the fact that the loan to the 2nd Respondent was disbursed only after the vehicle had been sold to and paid for by the 3rd Respondent. 2. It was further argued, citing **Nancy Ayemba Ngaira v Abdi Ali Civil Appeal No. 107 of 2008 [2010] eKLR,** that registration under Section 8 of the Traffic Act does not constitute conclusive proof of ownership. 3. On jurisdiction, counsel adopted the submission that **Order 22 of the Civil Procedure Rules** provides for execution of both decrees and orders, and that the objector proceedings were properly brought. Counsel urged that this Court further direct that the vehicle be registered in the name of the 3rd Respondent, and that the Appellant be condemned to pay accumulated storage charges, in addition to costs of the appeal. **Analysis and Determination** 1. Having considered the record, the grounds of appeal and the rival submissions, I am satisfied that the following issues arise for determination: * 1. **Whether the trial court had jurisdiction to entertain the objection proceedings and the subsequent applications dated 15th and 17th July 2024, in the absence of a decree;** 2. **Whether the 3rd Respondent discharged the burden of establishing a legal or equitable interest in the vehicle sufficient to displace the Appellant's registered beneficial interest;** 3. **Whether the trial court erred in dismissing the Appellant's application for review dated 17th July 2024;** 2. In handling this matter, the court bears in mind what the duty of a first appellate court is as was set out in **Selle & Another v Associated Motorboat Co. Ltd & Others [1968] EA 123**, the East African Court of Appeal held that “**An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well known. 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. In particular this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the feeling that its own evaluation of the evidence would be different from that of the trial judge.”** 1. Regarding the first issue, it is accurate, as the Appellant submits, that **Order 22 Rule 51(1) of the Civil Procedure Rules** pertains to a person asserting an interest in property attached in execution of a decree and that no decree, in the strict sense, was issued in **Miscellaneous Application No. E157 of 2024.** This application was initially a procedural request for repossession orders in aid of chattel security, rather than a suit that had proceeded to judgment and decree. There is validity to the argument that the literal interpretation of **Order 22 Rule 51** was not, on its face, applicable. 2. However, this does not resolve the issue. The vehicle was attached and removed from the possession of an individual unrelated to the proceedings, pursuant to an ex parte order obtained without notice to him, in the exercise of the trial court's coercive authority. When the execution of a court's order results in the seizure of property from a party who was never involved and was never heard, the court does not lose its capacity to hear and determine the complaint solely because the underlying process was a miscellaneous application rather than a formal suit. 3. To suggest otherwise would imply that a stranger whose property has been seized under the guise of a court order has no recourse before the very court whose process caused the seizure, other than initiating a completely new suit, while the property remains in the custody of the party responsible for the seizure. 4. The overriding objectives set out in **Sections 1A, 1B, and 3A of the Civil Procedure Act**, along with **Article 159(2)(d) of the Constitution,** mandate that courts facilitate the just, expeditious, and proportionate resolution of disputes and ought not to strangle the substance of any case at the altar of procedural technicalities as this would amount to a grave injustice being occasioned to a party whose case has merits in its substance but for a technicality of procedure. In this regard, I am satisfied that the trial court maintained jurisdiction, whether characterized as inherent, supervisory over its own execution process, or by analogy to **Order 22 Rule 51**, to entertain the 3rd Respondent's complaint that property not belonging to the judgment debtor had been wrongly seized pursuant to its order. 5. I am reinforced in this perspective by the further consideration that the Appellant, having previously invoked the jurisdiction of the trial court to obtain the repossession orders dated 18th April 2024, and having actively participated in the subsequent objection proceedings on the merits without raising any jurisdictional challenge until after the outcome was unfavourable to it, is not appropriately positioned to now contend that the same court lacked jurisdiction to hear the complaint of the individual directly and adversely impacted by the execution of its own order. Consequently, Grounds (d) and (f) of the Memorandum of Appeal are untenable. 6. On the second issue, **Section 8 of the Traffic Act** stipulates 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”** 1. It is undisputed that a logbook generated on 6th December 2023, attached to the application dated 18th April 2024, indicated that the vehicle was registered jointly in the names of the 2nd Respondent and the Appellant. Such registration, on its face, grants the Appellant a prima facie beneficial interest this being the case, the burden was on the 3rd Respondent to rebut the presumption by demonstrating, to the satisfaction of the trial court, a legal or equitable interest of his own, such as would entitle him to have the vehicle released to him and disregard the Appellant's registered interest. After reviewing the record, I am not satisfied that the evidence relied upon by the 3rd Respondent was sufficient to support such a significant conclusion, for the following reasons. 2. Firstly, the bill of lading and shipping order relied upon by the third respondent identifies a motor vehicle make Nissan X-Trail with chassis number NT32-061866. However, the logbook for the vehicle attached and in question bears chassis number T32-041169. This discrepancy is neither trivial nor immaterial, for reasons that a vehicle cannot possess two different chassis numbers. Furthermore, the identity of the vehicle purportedly imported and sold to the 3rd respondent has not been satisfactorily reconciled with the actual vehicle attached. Neither the ruling issued on 5th July 2024, nor that of 15th August 2024, makes any reference to, let alone resolves, this discrepancy. 3. Secondly, the invoices issued by the 3rd Respondent in support of his assertion that the purchase price was fully paid all bear the same invoice number, despite being dated in different instances on the record, *to wit* October 2023 and March 2024, dates that are too far apart that it is not probable and/or possible to write this off as an error of whatever nature or at all, even assuming there could have been an error in the numbering of the invoice book itself. The court however notes that no error has been pleaded and/or imputed by the 3rd Respondent hence the assumption by the court. 4. Additionally, none of these invoices identifies the vehicle by registration, chassis, and/or engine number. Also, no M-Pesa statement, bank statement, or other primary financial record was provided to substantiate the claim that the full purchase amount of Kshs. 2,721,036 had indeed been paid. Instead, what was produced consisted of images and screenshots of uncertain origin. 5. Thirdly, those screenshots and the email correspondence relied upon to establish the terms and timing of the alleged sale were not accompanied by any certificate under **section 106B of the Evidence Act** attesting to their authenticity and the manner of their production. The certificate as envisaged thereunder is a mandatory pre-condition to the admissibility of electronic evidence of this kind, going as it does to the reliability and integrity of the record and not merely to its form. Without it, this material ought not to have been treated by the trial court as cogent proof of the 3rd Respondent's claim. 6. Fourth, the trial court's ruling of 15th August 2024 was extended further by determining that the joint registration of the vehicle in the names of the Appellant and the 2nd Respondent was fraudulent. Neither party pleaded fraud, nor did any party present evidence aimed at establishing such a claim, nor was any party given the opportunity to contend against such an allegation. It is trite that fraud is a gravely serious matter that must be explicitly pleaded and rigorously proved; a determination of fraud made in passing, without such pleading or particularization, during the dismissal of a review application, cannot be upheld and must be reconsidered. 7. I do not accept the submission, made on behalf of the 2nd and 3rd Respondents, that the doctrine of bona fide purchaser for value without notice, as explained in **Katende v Haridar & Company Limited [2008] 2 EA 173**, resolves the matter in the 3rd Respondent's favour. This doctrine presupposes that the elements of a genuine purchase for value, in good faith, and without notice, have first been established on credible evidence. 8. No evidence of purchase by way of a sale agreement, or at all, was availed by both Respondents to anchor this doctrine. For the reasons outlined above, the evidentiary foundation for those elements was, at the very least, seriously undermined by unresolved inconsistencies concerning the very identity of the vehicle and the authenticity of the supporting documents. 9. Further, the proposition derived from **Osapil v Kaddy [2000] 1 EA 187 and Joel Muga Opija v East African Sea Food Limited [2013] eKLR** that registration is not conclusive of ownership does not assist the 3rd Respondent; it merely indicates that the presumption in favour of the Appellant was rebuttable, rather than definitively rebutted on this record. Simultaneously, I am not convinced that this Court should, based solely on the conflicting and unverified affidavit evidence, overturn the trial court's determination and conclusively declare the Appellant as the owner of the vehicle. 10. The issue of ownership, which involves contested factual issues regarding the timing and validity of an alleged sale, the identification of the sold vehicle, and the authenticity of documents submitted by both parties, cannot be definitively resolved on affidavit evidence alone without the opportunity for oral testimony and cross-examination. Proceedings of this nature, involving miscellaneous objectors, are inherently interim and protective in nature; they do not serve as a substitute for substantive litigation where the question of title can be conclusively adjudicated. 11. I therefore find that the trial court erred in making a final and conclusive finding of ownership in favour of the 3rd Respondent, and in particular erred in finding the joint registration to be fraudulent, on the material before it. Grounds (a), (b), (c) and (e) of the Memorandum of Appeal therefore succeeds to that extent. 12. Regarding the third issue, **Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules** restrict review to situations involving the discovery of new and significant matter or evidence that could not have been obtained with due diligence, an evident mistake or error apparent on the face of the record, or other justifiable grounds. It is well established, as affirmed in **National Bank of Kenya Limited v Ndungu Njau [1997] eKLR**, that review is not a second appeal and cannot be utilized to rectify an allegedly incorrect decision on the merits; that remedy resides in the avenue of appeal. The court stated that; **“If a court has reached a wrong conclusion of law or fact, the remedy is appeal. Review is not a second chance to argue the same case before the same court.”** 1. The complaint lodged by the Appellant in its application dated 17th July 2024, and their argument was that there was in existence a subsequent logbook, which was already part of the court record but which the trial court appeared to have been overlooked in reaching its determination in the impugned ruling delivered on 5th July 2024. This assertion can be construed to mean that it is the view of the Appellant that the trial court did not consider this evidence because their presumption is that if the Learned Magistrate had done so, the decision should have favoured the later logbook of 6th December 2023 over the earlier one. 2. This in my very well considered opinion then does not fall within the purview of what the Rules under Order 46 provides. Therein, it is envisaged that to qualify for a review, the matter at hand ought to involve a mistake or an error that is apparent on the face of the record, or the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the Appellant or could not be produced by him at the time when the decree was passed or the order made. 3. Here the Appellant presumes that the Hon Magistrate did not consider the evidence in question and therefore seeks that the court considers anew this piece of evidence that was already on record but which in their view, the court failed to take into consideration. Such an endeavour by the Learned Trial Magistrate would have necessitated a re-evaluation and comparison of the conflicting documentary evidence already presented before the court at the point of the application for review. Such an endeavour however, properly falls within the scope of an appeal, rather than a review. 4. In this regard, I concur with the trial court and the submissions of the 2nd Respondent that no error apparent on the face of the record, in the narrow sense required for review, was established. Ground (g) of the Memorandum of Appeal, to the extent that it challenges the dismissal of the review application therefore fails. Consequently, the dismissal of the application dated 17th July 2024 is upheld, except that, for the reasons previously stated, this should not have been combined with a conclusive finding of fraud. 5. In conclusion, I find that the trial court had jurisdiction to entertain the objection proceedings as well as the applications dated 15th and 17th July 2024, and it correctly declined to reopen its ruling of 5th July 2024, through a review process. 6. However, I further determine that the trial court's definitive conclusion regarding ownership in favour of the 3rd Respondent, particularly its finding that the joint registration of the vehicle was fraudulent, was not adequately supported by the affidavit evidence before it. This is due to the unresolved discrepancy in chassis numbers, the lack of proof of purchase of the motor vehicle by the 3rd Respondent from the 2nd Respondent by way of sale, lack of primary proof of payment for the alleged purchase, and the absence of a certificate of authenticity for the electronic evidence relied upon. 7. In this regard, the appeal is therefore partially granted as follows; 8. **That the Ruling and Orders issued by the trial court on 15th August 2024 and published on 16th August 2024 are now hereby set aside to the extent that they definitively establish ownership of Motor Vehicle Registration Number KDN 710M Nissan X-Trail in favour of the 3rd Respondent with an order that the said motor vehicle be released to the 3rd Respondent unconditionally.** 9. **That the order to dismiss the Appellant's application dated 17th July 2024 for review is now hereby affirmed and upheld. However, the unilateral determination by the Trial magistrate that the joint registration of the motor vehicle was fraudulent is now hereby set aside.** 10. **That the motor vehicle shall remain in the neutral storage yard within Bungoma County in accordance with the order issued by this Court on 23rd January 2025. No party or their agent shall sell, dispose of, or otherwise interfere with the said motor vehicle pending the final determination of ownership.** 11. **That any party may, within sixty (60) days of this judgment, file a substantive suit to establish ownership of the vehicle. If no such suit is filed within the specified period, any party shall be entitled to move this Court, with notice to the other parties, seeking for the release of the motor vehicle.** 12. **Each party shall bear its own costs of the appeal.** **Read, Dated and Signed at BUNGOMA on 30th July 2026** **E. OMINDE** **JUDGE**