[2023] KEHC 24823 (KLR)

Sanlam General Insurance Limited v Nguma (Suing as legal representatives of the Estate of Nicholas Murithi Wakaria (Deceased) (Civil Appeal E035 of 2022) [2023] KEHC 24823 (KLR) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24823 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal E035 of 2022

LM Njuguna, J

November 3, 2023

Between

Sanlam General Insurance Limited

Appellant

and

Wakaria Nguma (Suing As Legal Representatives Of The Estate Of Nicholas Murithi Wakaria Deceased)

Respondent

(Appeal arising from the decision of Hon. S.M. Nyaga SRM in the Senior Principal Magistrate’s Court at Baricho Civil Case No. E042 of 2021 delivered on 28th April 2022)

Judgment

1. The appeal herein has been filed vide memorandum of appeal dated 09th May 2022 wherein the appellant, being dissatisfied with the decision of the court as abovementioned, now seeks orders that:a.The appeal be allowed with costs;b.The ruling in question be set aside and the application before the trial court be considered afresh in this appeal;c.The evidence attached to the application be considered a fresh by this appellate court;d.Costs of this appeal be in the cause; ande.Any other orders as the court shall deem fit.

2. This appeal is premised on the grounds that the trial magistrate erred in law and fact:a.By failing to consider the evidence in support of the application to strike out the suit against the appellant as it was only an insurer which evidence substantially concludes the issue of ownership of motor vehicle KCV844A as far the appellant was and is concerned;b.By stating that the issue of ownership of the motor vehicle KCV844A has to be addressed at the main suit stage which determination was reached in a cursory perfunctory manner without considering the policy documents and certificate of insurance;c.By failing to direct his mind to the relevant and triable issues raised in the appellant’s application and written arguments by the appellant’s counsel;d.By failing to recognize the appellant’s gravamen in the said application that the appellant was only an insurer of motor vehicle KCV844A; ande.The decision was arrived at without considering that the insured (1st defendant) is already represented at its behest, therefore, the ruling to retain the appellant as a codefendant in the suit is unlawful, groundless and unreasonable.

3. The appellant had filed chamber summons dated 2nd March 2022, seeking that the suit be struck out as the 2nd defendant/applicant had been wrongly enjoined and that it was an abuse of the court process. The said application was premised on grounds, inter alia, that the motor vehicle which was said to have been registered to the 2nd defendant/applicant was actually registered to the 1st defendant. Further, that liability should be determined first against the 1st defendant before the 2nd defendant/applicant can be held liable. The applicant stated that it is bound to suffer costs in defending the suit and that if the orders sought are granted, the plaintiff will not be prejudiced in any way.

4. The said application was contested through a replying affidavit by the respondent, stating that the appellant was sued as the registered owner and not the insurer of the motor vehicle. That the motor vehicle records show that the appellant was the registered owner and such fact can only be proved at the hearing of the main suit.

5. The application in question arose within a tortious claim filed vide the plaint dated 06th April 2021 whose particulars are that on or about 07th November 2020, the deceased was lawfully riding his motor cycle registration number KMDH 966M along Sagana-Makutano road at “Kwa V” area when motor vehicle registration number KCV844A Nissan Saloon Car was so negligently, recklessly and/ or carelessly driven at a high speed without any due care, regard and/or attention by the 1st defendant and it failed to keep its lane thereby knocking down the motor cycle rider, as a consequence of which, the rider sustained fatal injuries.

6. The parties canvassed the appeal by way of written submissions and both parties complied

7. The appellant submitted that at the time of the accident, it was not the owner of the motor vehicle and was therefore wrongly enjoined in the suit. That an insurer only becomes liable under the Insurance Act when the amount payable to a claimant has been determined through a judgment. For this argument, reliance was placed on this court’s decision in the case of Idris Faridi & 2 Others Vs. Karithi Peter Mwangi (2018) eKLR where the honourable Judge relied on the findings in Laichard Shah & Another Vs. Kenindia Insurance Ltd (2005) eKLR.

8. On the other hand, the respondent submitted that at the time of the accident the motor vehicle was registered to the appellant according to the copy of NTSA records. That in her replying affidavit, the respondent confirmed that the motor vehicle was registered in the joint names of the appellant and another. That when pleadings raise triable issues, the same must be subjected to full hearing as was found in the cases of Letang Vs. Cooper (1965) QB232 and Mary Wanjiku (suing as administratrix of the estate of Richard Ndirangu) Vs. Evarald Stephen Kongo& Another (2011) eKLR. That the issue of ownership of the motor vehicle can only be determined in the main suit. That the respondent has a cause of action against the appellant and the same cannot be resolved at an interlocutory stage but at the main hearing.

9. From the foregoing, I deduce the issue for determination to be whether or not the trial magistrate erred in dismissing the application dated 02nd March 2022.

10. The main issue in the subject application is ownership of the motor vehicle at the time of the accident. The appellant/applicant produced a copy of the motor vehicle’s logbook which shows that the same was registered in the name of Gichovi Njiru Njue, and argued that it was only an insurer and not a registered owner. The respondent contested this position and produced NTSA records which showed the history of ownership of the motor vehicle including the time of the accident.

11. Section 8 of the Traffic Act creates a scenario where the ownership of a motor vehicle can be rebutted. That is to say, the information on the logbook is not prima facie proof of ownership. It states as follows:“The person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle”

12. Additionally, in the case of Nancy Ayemba Ngana Vs. Abdi Ali (2010) eKLR it was 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 is 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 had 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; and 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 a police abstract showed on a balance of probabilities, that the 1st defendant was one of the owners of the matatu in question...”

13. On the other hand, the official ownership record of the motor vehicle by NTSA is prima facie proof of ownership, especially at the time of the accident. In the case of Anthony Kuria Wangari Vs Guardian Bank Limited (2021) eKLR the court held thus:“It follows that the provision of Section 8 of the Traffic Act on the NTSA extract of record is only prima facie evidence. The Bank was required to prove on a balance of probability that as a matter of fact the motor vehicle had been transferred as at the date of the accident. The civil standard of proof was considered in the Canadian case namely R. VS. LAYTON, (2009) SCC 36 (CanLII), (2009) 2 SCR 540 and was stated as thus:-“... with reference to the civil standard of proof. R. D. Wilson, N. J. Garson and C. E. Hinkson’s Civil Jury Instructions (2nd ed. (loose-leaf)), at § 4. 7.4, provides the following sample instruction for explaining balance of probabilities to a civil jury:-What does “proof on a balance of probabilities” mean? It does not mean proof beyond a reasonable doubt — that standard of proof applies only in criminal trials. In civil trials, such as this one, the party who has the burden of proof on an issue must convince you that what he or she asserts is more probable than not — that the balance is tipped in his or her favour. You must examine the evidence and determine whether the party who has the burden of proof on an issue is relying on evidence that is more convincing than the evidence relied on by the other side. In short, you must decide whether the existence of the contested fact is more probable than not.””

14. The rebuttable issue of ownership of a motor vehicle was also discussed in the case of Benard Muia Kilovoo Vs. Kenya Fresh Produce Exporters (2020) eKLR and was summarised as follows:-“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.”

15. In considering this appeal, it is my view that the issue of ownership of the motor vehicle is factual in nature and must be subjected to the hearing of the substantive suit. It is not an issue that can be conclusively determined in an interlocutory manner. I therefore find no reason to strike out the suit as it presents triable issues which should go to trial. In the case of Kivanga Estates Limited Vs. National Bank Of Kenya Limited (2017) eKLR the court held as follows regarding an application to strike out pleadings:“Co-Operative Merchant Bank Ltd. Vs George Fredrick Wekesa Civil Appeal No. 54 of 1999 the Court summarized the principles as follows:-‘The power of the Court to strike out a pleading under Order 6 rule 13(1) (b) (c) and (d) is discretionary and an appellate Court will not interfere with the exercise of the power unless it is clear that there was either an error on principle or that the trial Judge was plainly wrong... Striking out a pleading is a draconian act, which may only be resorted to, in plain cases...Whether or not a case is plain is a matter of fact... A Court may only strike out pleadings where they disclose no semblance of a cause of action or defence and are incurable by amendment.’”

16. I have considered the application dated 02nd March 2022 together with its supporting affidavit, the response thereof and written submissions and I take the view that the same was rightly dismissed by the trial magistrate, albeit vide a shortly worded ruling.

17. In the premises, I find no merit in this appeal and the same is hereby dismissed with costs to the respondent.

18. It is so ordered.

DELIVERED, DATED AND SIGNED AT KERUGOYA THIS 3RD DAY OF NOVEMBER, 2023. L. NJUGUNAJUDGE