https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9028

Ali v Odwaro & another (Civil Appeal E730 of 2024) [2026] KEHC 9028 (KLR) (Civ) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9028 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E730 of 2024 BW Murunga, J June 25, 2026 Between Yussuf Abdullahi Ali Appellant and David Onyango Odwaro 1st Respondent White Span Enterprises 2nd Respondent (Being an Appeal from the Judgment and Decree of Hon. A.G. Njuguna (Adjudicator/Resident Magistrate) delivered on 22nd March 2023 in Milimani Small Claims Court SCCC No. E2506 of 2023) Judgment A. Background 1.This is an appeal arising from the Judgment of the Small Claims Court at Milimani (Hon. A.G. Njuguna, Adjudicator) in SCCC No. E2506 of 2023, delivered on 22nd March 2023. 2.The 1st Respondent instituted the suit against the Appellant and the 2nd Respondent, seeking special damages of Kshs. 128,250/- under the principle of subrogation. The claim arose from a road traffic accident that occurred on 5th June 2020 involving the 1st Respondent’s motor vehicle, registration number KCM 978X, and motor vehicle registration number KBR 028V, which the 1st Respondent alleged was owned by the Appellant and the 2nd Respondent. 3.In response to the claim, the Appellant filed a Statement of Response dated 27th June 2023, denying ownership of the suit vehicle at the time of the accident and asserting that he exercised no control over it and derived no benefit from its use. The 2nd Respondent did not enter an appearance or file a response to the claim. 4.The trial court found that the Appellant failed to institute third-party proceedings, apportioned 100% liability against the Respondents, and entered judgment in favor of the 1st Respondent for Kshs. 128,250/-. 5.Aggrieved by this decision, the Appellant preferred the present appeal vide a Memorandum of Appeal dated 19th June 2024. B. Submissions By The Parties 6.The Appellant’s written submissions fault the trial court for failing to correctly apply the burden of proof. The Appellant contends that an appeal from the Small Claims Court is limited to matters of law by dint of Section 38 of the Small Claims Court Act. Relying on the Court of Appeal decision in Peter Gichuki King’ara v Independent Electoral and Boundaries Commission & 2 others [2014] eKLR, the Appellant asserts that the improper evaluation of evidence leading to an incorrect legal determination constitutes an error of law. 7.Furthermore, the Appellant argues that the NTSA search produced by the 1st Respondent, dated 9th February 2022, merely listed the Appellant as one of several previous owners alongside Ali Jama Ahmed, Mohamed Ali Abdi, and White Span Enterprises. Because the search did not specify the dates of ownership, the Appellant maintains that the 1st Respondent failed to prove under the Evidence Act that the Appellant owned the vehicle on the material date of the accident. The Appellant argues that the trial court erroneously shifted this burden by requiring him to initiate third-party proceedings. 8.Conversely, the 1st Respondent submits that the trial court properly evaluated the evidence and that its factual findings should not be disturbed, as the High Court’s jurisdiction is strictly limited to matters of law. The 1st Respondent cites Twaher Abdulkarim Mohamed v Independent Electoral and Boundaries Commission (IEBC) & 2 others, (2014) eKLR to emphasize that a decision is only erroneous in law if it is one that no reasonable court could reach. 9.The 1st Respondent asserts that the Adjudicator is the ultimate authority on facts and evidence, meaning this Court cannot fault the trial court on questions of fact or the analysis of evidence. Consequently, the 1st Respondent posits that the trial court committed no legal error in its determination of liability and urges this Court to uphold the trial court's award. C. Issues For Determination 10.Having perused the record of appeal, the impugned judgment, and the rival submissions, the issues crystallizing for determination are:a.Whether the trial court erred in law by shifting the burden of proof regarding the ownership of motor vehicle registration number KBR 028V.b.Whether the Appeal has merit and what final orders should be granted. D. Analysis And Determination 11.The jurisdiction of this Court is anchored in Section 38 of the Small Claims Court Act, which restricts appeals from the Small Claims Court to matters of law only. An appellate court exercising this limited jurisdiction cannot interfere with the trial court’s factual findings unless it is demonstrated that the trial court acted upon no evidence, applied the wrong legal principles, or reached a conclusion that no reasonable tribunal would reach. 12.The core dispute in this appeal revolves around the allocation and discharge of the burden of proof. It is a well-settled jurisprudential principle that the question of whether a trial court properly evaluated the evidence and applied the correct standard of proof is undeniably a matter of law. When a court shifts the legal burden to the wrong party, it commits a reversible error of law. 13.Section 107 of the Evidence Act dictates that 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. Therefore, the primary legal burden lay squarely on the 1st Respondent to prove, on a balance of probabilities, that the Appellant was the registered or beneficial owner of motor vehicle registration number KBR 028V on the specific date of the accident, being 5th June 2020. 14.In civil claims arising from motor vehicle accidents, Section 8 of the Traffic Act provides 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. To trigger this statutory presumption against the Appellant, the 1st Respondent was obligated to produce incontrovertible documentary evidence demonstrating that the Appellant was the registered owner on the material date. 15.The evidentiary record reveals that the 1st Respondent relied on an NTSA copy of records generated on 9th February 2022. A careful examination of this document shows three individuals listed as “Current Owners,” while the Appellant is listed under the category of “Previous Owner” alongside three other distinct entities, including the 2nd Respondent. Crucially, the document does not capture the chronological timelines or exact dates during which any of these previous owners held the title. 16.Because the NTSA search provided no temporal markers for the Appellant’s period of ownership, it was intrinsically ambiguous regarding the status of the vehicle on 5th June 2020. The 1st Respondent’s own investigation report even acknowledged that the Appellant’s family indicated the vehicle had been sold to the 2nd Respondent, who was the active policyholder at the time of the accident. 17.Despite these glaring evidentiary gaps, the trial Adjudicator ruled against the Appellant primarily because the Appellant failed to initiate third-party proceedings under Order 1 Rule 15 of the Civil Procedure Rules to apportion blame. The trial court reasoned that the Appellant’s failure to bring the alleged buyer on board crystallized his liability. 18.This reasoning by the trial court constitutes a fundamental misdirection in law. As persuasively held by the High Court in Alfred Kioko Muteti v Timothy Miheso & another [2015] eKLR, it is not the duty of a defendant to prove who the owner of an accident motor vehicle was. The burden of proof lies strictly on the plaintiff. A defendant only assumes an evidentiary burden to rebut ownership after the plaintiff has successfully established a prima facie case that the defendant was the registered owner at the material time. In the above case, the lady Justice Aburilli held that:“Thus, the burden of proof lies on the party who would fail if no evidence at all were given by either party. It was therefore not the duty of the 2nd defendant to prove who the owner of the accident motor vehicle was, whether by registration or by possession or beneficial use. It was the duty of the plaintiff to prove on a balance of probabilities that the accident motor vehicle belonged to the 2nd defendant. The evidence adduced by the plaintiff fell short of that. in Nancy Ayiemba Ngaira V Abdi Ali CA 107/2008 [2010] e KLR , the court observed 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 this 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 fully cognizant of the fact that a different person, or different other persons, may be the defector owners of the motor vehicle and so the Act has an opening or 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 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 has been pleaded that there was such alternative kind of ownership. Indeed, the evidence adduced in the form of police abstract showed on a balance of probabilities that the 1st defendant was one of the owners of the matatu in question.” 19.By requiring the Appellant to file third-party proceedings to exonerate himself before the 1st Respondent had conclusively proved the Appellant’s ownership on the date of the accident, the trial court effectively, and unlawfully, shifted the burden of proof. The Appellant had no legal obligation to indemnify the 1st Respondent or pursue the 2nd Respondent until the 1st Respondent first discharged his statutory burden under the Evidence Act. 20.Flowing from this thought process, it becomes evident that the trial court’s finding of liability against the Appellant was anchored on an erroneous application of the law of evidence. Since the 1st Respondent failed to adduce conclusive proof that the Appellant was the registered owner of the suit vehicle on 5th June 2020, the claim against the Appellant was legally untenable and ought to have been dismissed. E. Disposition 21.In the upshot, I find that the appeal is merited. I make the following final orders:a.The Appeal is hereby allowed.b.The Judgment of the Small Claims Court delivered on 22nd March 2023 in SCCC No. E2506 of 2023 is set aside in its entirety as against the Appellant.c.The Appellant is awarded the costs of this Appeal.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF JUNE 2026.BENARD WAFULA MURUNGAJUDGEDelivered on a virtual platform in the presence of:Mwanzia for AppellantsMs Otieno for RespondentsKevin Babu - Court Assistant