[2022] KEHC 13886 (KLR)

Tasha Enterprises (K) Limited v Barasa (Civil Appeal 84 of 2018) [2022] KEHC 13886 (KLR) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13886 (KLR)

Republic of Kenya

In the High Court at Bungoma

Civil Appeal 84 of 2018

SN Riechi, J

October 7, 2022

Between

Tasha Enterprises (K) Limited

Appellant

and

Ben Khaemba Barasa

Respondent

(Being an appeal from the Judgement and Decree of Hon. S.N. Abuya, PM in Webuye CMCC No. 187/2013 delivered on 28/8/2014)

Judgment

1. The plaintiff (respondent herein) sued the appellant claiming general and special damages as well as costs of the suit following a road traffic accident where the respondent was hit by a motor cycle owned and at the material time being rode by one Samuel Wanyonyi Masava. The respondent sustained severe blunt injury to the head, swollen left facial region and lost consciousness for 20 minutes and compound fracture of the right tibia and fibula.

2. The appellant filed its statement of defence denying the respondent’s claim. The suit proceeded to hearing the respondent, PW-1 testifying that on the material day, he was walking from Webuye hospital towards the t-junction on the left side of the road when he was hit from behind by motor cycle registration number K**V consequent of which he sustained injuries and admitted at Webuye district hospital for approximately 14 days. He blames the rider of the motorcycle who was charged with the offence of careless driving. At the time of testifying, he had not fully recovered from the effects and walked with a limp.

3. The appellant did not call any witness and their case was thus closed.

4. By a judgement of that court, the trial magistrate apportioned liability at 100% in favour of the respondent against the appellant and awarded the sum of kshs 750,000/- in general damages and kshs 23,900/- in special damages. The appellant was dissatisfied and now appeals to this court raising the following grounds;1. The learned trial magistrate erred in law and fact by holding the appellant company liable for the claim lodged against it by the respondent.2. The learned trial magistrate erred in law by awarding the respondent quantum which was inordinately excessive in the circumstances.

5. The appeal was disposed of by way of written submissions. Both parties complied.

6. It is submitted by the appellant that the finding by the trial court that it was the owner of the motorcycle was erroneous. That in as much as the appellant is the registered owner of the motor cycle, the police abstract produced showed that the owner of the motorcycle was one Geoffrey Musembi Simiyu and the said Samuel Wanyonyi the rider.

7. Counsel makes reference to section 8 of the Traffic Act to advance the argument that where it can be shown that the appellant though the registered proprietor had passed ownership to a third party, the presumption that it is the owner is sufficiently rebutted. The case of Jared Magwaro Bundi & another v Primarosa Flowers Limited (2018)eKLR has been cited.

8. On the issue of quantum, counsel submits that the award of kshs 400,000/= is sufficient compensation based on the authority in Daniel Otieno Owino & another v Elizabeth Atieno Owuor(2020)eKLR.

9. For the respondents, it is submitted on the issue of liability that the appellant being the registered owner of the motorcycle was held vicariously liable. That the appellant never tendered any evidence in rebuttal and the respondent’s evidence was therefore not rebutted. Reliance has been placed in the authority in Trust Bank Ltd v Paramount Universal Bank Ltd & 2 others (2009)eKLR and Autar Singh Bahra & another v Rau Govindji HCCC 548/1998 (UR)

10. On quantum, counsel submits that an appellate court can only interfere with an award of damages once it is shown that the damages awarded by the trial court are inordinately high or low as to amount to an erroneous estimate or that the court took into account irrelevant issues or the assessment is not based on the evidence on record. The authorities in Selle & another v Associated Motor Boat Co. Ltd & another(1968) EA 123 and Butt v Khan(1982-88) KAR 1 have been cited in support of this proposition.

11. In support of the amount awarded, counsel cites Charles Mwania & another v Betty Hassan(2008)eKLR, Mwaura Muiruri v Suera Flowers Ltd (2014)eKLR and Francis Ndung’u Wambui & 2 others v VK(minor suing through next friend and mother MCWK)(2019)eKLR.

12. The duty of the court in a first appeal is as was stated inSelle & Another v Associated Motor Boat Co Ltd & Others (1968) EA 123 where the duty was stated in the following terms:

13. I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. 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 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. 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 impression based on the demeanour of a witness is inconsistent with the evidence in the case generally (Abdul Hammed Saif v Ali Mohamed Sholan (1955), 22 EACA 270).

14. Having examined the record as required of the court by law, the submissions by the parties in this appeal and the case law, the court is of the view that the issues commending themselves for determination herein are on liability and the quantum of damages awarded by the subordinate court.

15. There are instances when the appellate court may interfere with the trial court’s finding of fact. Such instances were stated in the Court of Appeal decision in John Onyango & Another v Samson Luwayi(1986) eKLR where it was held:-This court will not interfere with the findings of fact of the two lower courts unless it is clear that the magistrate and the judge have so misapprehended the evidence that their conclusions are based on incorrect bases: Abdul v Rubia 1917/1918 7 EALR 73.

16. It is now settled law within our jurisdiction that there cannot be liability without fault. This has been the holding in several decisions from the Court of Appeal and this court. In Kiema Mutuku v Kenya Cargo Hauling Services Ltd. (1991) 2KAR 258, it was held;…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.

17. In determining this issue, it is imperative to interrogate the facts and evidence presented in the trial court to ascertain whether the appellant was negligent and or liable for the accident so that liability can attach vicariously. The court has perused the appellant’s defence and at paragraph 2 of the statement of defence, it is averred that the motorcycle had been sold to one Samuel Simiyu who had purchased it.

18. The provisions of section 8 of the Traffic Act has been cited in support of the contention that since the there is evidence that the motorcycle ownership had passed, the presumption of ownership by virtue of registration had been rebutted. The section provides;

19. The person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle.

20. The copy of records produced herein shows that the motorcycle is registered in the appellant’s name. The abstract produced in court shows that the same is owned by one Geoffrey Musembi Simiyu and at the time of accident, the rider was one Samuel Wanyonyi Masava who was charged at the Webuye Court for causing the accident.

21. The said section has been the subject of several decisions within our jurisdiction. In Ramesh V Hiran v Justus Murianki & another [2017] eKLR, Gikonyo J held;Clearly, from the submissions of the parties, there is a dichotomy on section 8 of the Traffic Act. And, the court must, therefore, ascertain the law and apply it to the facts of the case. What does the law say on registration of motor vehicle? Doubtless, section 8 of the Traffic Act creates a rebuttable presumption that a person whose name a vehicle is registered is the owner of the vehicle. Accordingly, registration in the register of motor vehicles is prima facie proof of ownership but may be rebutted by evidence

22. In Muhambi Koja v Said Mbwana Abdi (2015) eKLR, the Court of Appeal while interpreting the section stated;……..To begin with, in the absence of evidence to the contrary, the registration certificate or log book of a motor vehicle or an extract of the record issued by the Registrar of Motor Vehicles constitute the best evidence to prove ownership of a motor vehicle. But situations, in the normal course of business and human interactions, may arise where the person named in those records may have passed the property in the vehicle to some other person in whom the ownership presently vests……………

23. Having perused the record, three (3) pieces of evidence present themselves; first, the motorcycle is registered in the appellant’s name; secondly, the rider was Samuel Wanyonyi and, thirdly, the police abstract indicates the owner as Geoffrey Musembi. It is also no lost to this court that the appellant never tendered in any evidence in rebuttal but the issue was raised their defence which forms part of the record and the court ought to consider. The trial magistrate’s finding was that the plaintiff’s/ respondents case stands in the absence of evidence to the contrary.

24. The issue of ownership goes into the root of joint liability. As held by the trial court, the appellant is liable to settle the decretal sum jointly and severally. On my part, I find the issue of ownership of the motorcycle to have been a misdirection on the part of the trial magistrate in that from the evidence presented before her, it was clear that the ownership of the motorcycle had passed to a third party despite the fact of registration.

25. In the circumstances and for the above stated reasons, I find that the appellant was not in any way liable in the causation of the accident and is hereby discharged from liability. This however does not in any way take away the liability from the other parties in the subordinate court to settle the decretal sum.

26. Consequently, the appeal is hereby allowed with costs to the appellant.

DATED AT BUNGOMA THIS 7TH DAY OF OCTOBER, 2022S.N. RIECHIJUDGE