https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7277

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT VIHIGA** **CIVIL APPEAL NO E003 OF 2021** **ZEBEDAYO IGUNZA KIVASA……..……………………………….……APPELLANT** **VERSUS** **KESEKWA JOHN MWALIKISON……………………………………..RESPONDENT** **(Being an appeal from the Judgment and Decree of Hon M.M Gituma (RM) delivered at Vihiga in the Principal Magistrate’s Court Civil Case No 132 of 2020 on** **14th April 2021)** **JUDGMENT** **INTRODUCTION** 1. In her decision of 14th April 2021, the Learned Trial Magistrate, Hon M. M. Gituma, Resident Magistrate, dismissed the Appellant’s suit for failing to prove that the Respondent was the registered owner of Motorcycle Registration Number KMED 891Y (hereinafter referred to as “the subject Motorcycle”). 2. Being aggrieved by the said decision, the Appellant herein filed a Memorandum of Appeal dated 29th April 2021 and filed on 6th May 2021. He relied on five (5) grounds of appeal. 3. His Written Submissions were dated 8th July 2025 and filed on 24th July 2025. The Respondent did not file submissions and did not participate in the appeal. The Judgment herein is based on the said Written Submissions, which the Appellant relied upon in their entirety. **LEGAL ANALYSIS** 1. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion, but bearing in mind that it neither saw nor heard the witnesses testify. 2. This was aptly stated in the case of **Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123** where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect. 3. Having looked at the Grounds of Appeal and Appellant’s Written Submissions, it appeared to this court that all the grounds of appeal were related, and the issue that had been placed before it for determination was whetheror not the Trial Court erred in dismissing the Appellant’s claim. This court found the questions of apportionment of liability and how much quantum he was entitled to in the event he succeeded on his Appeal to have been pertinent. 4. This court addressed the issues herein under the following distinct and separate heads. 5. **LIABILITY** 6. Grounds of Appeal Nos (1), (2), (3), (4), and (5) were dealt with together as they were related. 7. The Appellant submitted that the Respondent was served with Summons to Enter Appearance but failed to enter appearance and, hence, interlocutory judgment was entered against him. He maintained that there being an interlocutory judgment, he was not required to prove liability as it was fully determined and the Trial Court was to determine the issue of quantum through formal proof. He faulted the Trial Court for having considered the issue of liability even after it had entered an interlocutory judgement. 8. He added that the Trial Court erred in holding that the Police Abstract was not sufficient to prove the Respondent was the owner of the subject Motorcycle. He contended that when he reported the matter at the Police Station, he was issued with a Police Abstract showing the Respondent as the owner of the subject Motorcycle. He argued that the issue of ownership of the subject Motorcycle was not controverted and, thus urged this court to allow his Appeal. 9. A perusal of the Trial Court record showed that the Respondent was served with Summons to Enter Appearance together with the Plaint on 22nd August 2020. He failed to enter appearance or file statement of defence as a result of which interlocutory judgment was entered against him. The matter was then listed and proceeded for formal proof. The Appellant produced documents to support his claim. 10. The Trial Court, however, dismissed the Appellant’s claim on the ground that he failed to prove that the Respondent was the registered owner or beneficial owner of the suit motorcycle. The Trial Court also found that although the Police Abstract indicated the Respondent to be the owner, that was not substantive proof of ownership. 11. The Appellant produced a Police Abstract showing that the Respondent was the owner of the subject Motorcycle. As the Police Abstract Report was filled by the police, it was burdensome to for the Trial Court to have required the Appellant to provide further evidence to prove that the Respondent was indeed the registered owner of the said Motorcycle. If the Respondent had entered appearance and/or denied having been the registered owner of the subject Motorcycle during the formal proof, the Appellant would have been said to have failed to prove his case. 12. This court’s position was buttressed by the holding of the Court of Appeal in the case of **Joel Muga Opija vs East African Sea Food Limited (2013) KECA 181,** where it was held that the best way to prove ownership would be to produce to the court a document from the Registrar of Motor vehicles showing who the registered owner is, but that when the abstract was not challenged and was produced in court without any objection, its contents could not be later denied. 13. The Respondent did not adduce evidence to rebut his said assertion. This court, therefore, took the considered view that the Trial Court entered into the arena of the dispute by prosecuting the case on behalf of the Respondent herein by finding that the Appellant did not prove that the Respondent owned the subject Motor Vehicle. 14. Notably, there are different opinions on whether liability ought to be proved when interlocutory judgment has been entered. In the case of **Samson S. Maitai & Another vs African Safari Club Ltd & Another** [**[2010] KEHC 595 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2010/595/eng%402010-10-01)**,** the court therein held that *i*f a party adduced sufficient evidence to raise a presumption that what was claimed was true, the burden passed to the other party, who would fail unless sufficient evidence was adduced to rebut the presumption. 15. In the case of**Julius Munga Ndungi vs John Maina [2020] KEHC 390 (KLR),** the court also held that the entry of an interlocutory judgment did not settle the issue of liability and that the appellant still had to prove his case when the matter came up for formal proof hearing. This view was buttressed by the Court of Appeal in the case of Karugi & Another vs Kabiya & 3 Others [1983] KECA 38 (KLR), where it held that the plaintiff still bore the burden of proving his case on formal proof notwithstanding that a defence against the suit had not been filed. 16. However, in the case of **Peter Njoroge Kamau vs Attorney General [2017] KECA 71 (KLR),** another bench of the Court of Appeal held that once an interlocutory judgment had been entered, the plaintiff did not need to prove liability. The court emphasised that once an interlocutory judgment was regularly entered, it meant that there was judgment on liability and the only other step remaining was assessment of damages. It stated that it would be absurd to have judgment on liability entered and then backtrack to impugn such judgment. 17. This was also the reasoning in **Paul Muiyoro t/a Spotted Zebra vs Bulent Gulbahar Remax Realtors [2016] KECA 95 (KLR),** where the Court of Appeal held that the effect of the interlocutory judgment was that liability in regard to the appellant's claim was no longer in issue as the respondents had failed to dispute the facts pleaded by the appellant in the plaint. 18. In the case of[**Felix Mathenge vs Kenya Power & Lighting Company Ltd [2008] KECA 297 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2008/297/eng%402008-03-13)**,** the court therein held that the role of the court after entering interlocutory judgment was only to assess damages since interlocutory judgment having been regularly obtained there could never be any doubt that judgment was final with regard to liability and was unassailable. 19. Notably, Order 10 Rule 4 of the Civil Procedure Rules, 2010 stipulates as follows:- 20. **Where the plaint makes a liquidated demand only and the defendant fails to appear on or before the day fixed in the summons or all the defendants fail so to appear, the court shall, on request in Form No. 13 of Appendix A, enter judgment against the defendant or defendants for any sum not exceeding the liquidated demand together with interest thereon from the filing of the suit, at such rate as the court thinks reasonable, to the date of the judgment, and costs.** 21. **Where the plaint makes a liquidated demand together with some other claim, and the defendant fails, or all the defendants fail, to appear as aforesaid, the Court shall, on request in Form No. 13 of Appendix A, enter judgment for the liquidated demand and interest thereon as provided by sub-rule (1) but the award of costs shall await judgment upon such other claim.** 22. Further, Order 10 Rule 6 of the Civil Procedure Rules provides as follows:- **“Where the plaint is drawn with a claim for pecuniary damages only or for detention of goods with or without a claim for pecuniary damages, and any defendant fails to appear, the court shall, on request in Form No. 13 of Appendix A, enter interlocutory judgment against such defendant, and the plaintiff shall set down the suit for assessment by the court of the damages or the value of the goods and damages as the case may be.”** 1. A perusal of the Appellant’s Plaint dated 6th August 2020 and filed on 13th August 2020 showed that he sought the following reliefs:- * **Kshs 3,600/= being special damages** * **General damages for pain, suffering and loss of amenities** * **Costs of the suit** * **Interest on (a), (b) and (c) above at court rates.** * **Any other or further relief this Honourable Court deems fit to grant in the circumstances.** 2. It was evident from Order 10 Rule 4 (2) of the Civil Procedure Rules that interlocutory judgment could only be entered for the sum of Kshs 3,600/=. If that was the only sum that the Appellant herein had claimed, judgment would have been entered for the said sum together with interest thereon from the filing of the suit, at such rate as the court thinks reasonable, to the date of the judgment, and costs. However, as the liquidated claim was accompanied by a claim for general damages, the matter needed to be set down for formal proof for the assessment of the claim for general damages for pain, suffering, and loss of amenities. The assessment was not automatic as the Appellant was, therefore, required to prove his claim. 3. What a defendant could not argue in a case where interlocutory judgment was entered against it was that it was not liable for the loss that a plaintiff incurred. In other words, interlocutory judgment meant that a defendant could not exonerate itself from liability. However, in cases of negligence, it was imperative that a plaintiff demonstrate how the defendant was liable for the loss that the plaintiff had suffered. Formal proof did not mean automatic success of a case. A plaintiff was required to tender sufficient evidence to prove its case. The question of apportionment of liability was, therefore, an important issue to be addressed by the trial court even where interlocutory judgment had been entered. 4. It was this court’s considered view that even when there was interlocutory judgment, the plaintiff was required to notify the defendant of the hearing date once it set down the suit for formal proof. Although a defendant was estopped from adducing evidence as it would have been shut out for failure to enter appearance and/or file a statement of defence, the defendant was still entitled to cross-examine the plaintiff. 5. Order 10 Rule 9 of the Civil Procedure Rules states that:- **“Subject to rule 4, in all suits not otherwise specifically provided for by this Order, where any party served does not appear the plaintiff may set down the suit for hearing.”** 1. The evidence of service of the hearing notice was, therefore, critical to give sanctity to the proceedings. Notably, Order 12 Rule 2 of the Civil Procedure Rules provides that:- **“If on the day fixed for hearing, after the suit has been called on for hearing outside the court, only the plaintiff attends, if the court is satisfied—** * 1. **that notice of hearing was duly served, it may proceed *ex parte*;** 2. **that notice of hearing was not duly served, it shall direct a second notice to be served; or** 3. **that notice was not served in sufficient time for the defendant to attend or that for other sufficient cause the defendant was unable to attend, it shall postpone the hearing”** 1. The proceedings of the lower court showed that the Trial Court proceeded without ascertaining if the Defendant had been served with a Hearing Notice. Indeed, there was no affidavit of service evidencing service of the hearing notice for 24th March 2021 upon the Respondent herein. The Trial Court merely noted that there was no appearance by the Respondent herein. 2. In the absence of such proof of service upon the Respondent herein, the proceedings were irregular and could not stand as the Respondent had to be given all the opportunities to defend a case against him I before the final judgment was entered against him. 3. As this court had resolved the issue of ownership which was the basis of the Appeal herein, this court was persuaded to find and hold that this matter should be remitted to the lower court for the issue of apportionment of liability, if at all, to be determined. 4. Indeed, as was held in the case of **Dharmagma Patel & Another vs T.A. (Minor)(Suing through his mother and next friend HH** [**[2014] KEHC 110 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2014/110/eng%402014-08-27)**,** there was no liability without fault and hence, where the claim was based on negligence, there had be proof of negligence. 5. **QUANTUM** 6. According to the Medical Report of Dr Manasseh O. Onyimbi, that was dated 28th July 2020, the Appellant was said to have sustained a fracture of the right ilium with maintained position, osteopenia of the pelvic and hip joint bones, bilateral osteoarthritis of the hip joints, and soft tissue injuries of the right lower limb with blood loss from the wounds. He observed that the Appellant had difficulty walking steadily and engaging effectively in performing his daily activities. He opined that the Appellant would heal in the next one (1) to two (2) years. 7. The Appellant annexed a copy of the receipt for the Medico-Legal Report in the sum of Kshs 3,000/=. Proof of Kshs 600/= was not attached to the Record of Appeal. However, the court noted that the receipt for the said amount was tendered in evidence during the trial. 8. The Appellant did not submit on quantum. The Trial Court did not also address itself on quantum. Although this court had both original and appellate jurisdiction, it was the view of this court that the general damages ought to be assessed by the lower court to give both the Appellant and the Respondent more chances of appeal in the event they were aggrieved by the decision of the said court. 9. Good practise demanded that trial courts give their determination of the quantum they would have awarded even when they dismissed a case because they had to bear at the back of their minds that their decision dismissing a claim could be overturned on appeal. **DISPOSITION** 1. For the foregoing reason, the upshot of this court’s decision was that the Appellant’s Appeal dated 29th April 2021 and filed on 6th May 2021 was partially merited on the issue of liability, and the same be and is hereby allowed. The effect of this decision is that the decision of Hon M.M Gituma (RM) delivered at Vihiga in the Principal Magistrate’s Court **Civil Case No 132 of 2020** on 14th April 2021 be and is hereby set aside and/or vacated. 2. It is hereby directed that the file be mentioned by the Head of Station, Senior Principal Magistrates Court at Vihiga on 25th June 2026 with a view to giving further directions on the hearing of this matter for the determination of the issues of liability and quantum. 3. As the Appellant was partially successful, it is hereby directed that each party bears its own costs of this Appeal. 4. It is so ordered. **DATED** and **DELIVERED** at **VIHIGA** this **26th** day of **May** 2026 **J. KAMAU** **JUDGE**