Felicina Muthoni Wang’ondu v Moses Amadi & John Masinde Makomere [2016] KEHC 4617 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  580 OF 2007

FELICINA MUTHONI WANG’ONDU (suing as administratrix

of the estate of

JOHN CHARLES WANG’ONDU MUCHIRI) ….……………..PLAINTIFF

VERSUS

MOSES AMADI ……………………………………….1ST DEFENDANT

JOHN MASINDE MAKOMERE …………....…………2ND DEFENDANT

JUDGMENT

This is a fatal road accident claim instituted by the plaintiff  Felicina  Muthoni Wangondu ( suing  as administratrix  of the estate  of the  deceased Charles Wangondu Muchiri ) against  Moses  Amadi  and John Masinde  Makomere, herein after called  the defendants.

By a  plaint dated  8th August  2007  the plaintiff  claimed that  on  or about  the 5th day  of January  2007 the 1st  defendant  then driving, managing and or controlling motor  vehicle registration No.  KAN 039L belonging  to the 2nd defendant, the  said motor vehicle  hit the deceased  who was a lawful pedestrian  along Moi Drive, Umoja  Estate, Nairobi thereby fatally injuring  the  deceased, and that his estate  has suffered  loss and  damage.  The suit is brought under the Fatal Accidents Act and the Law Reform Act.

The plaintiff instituted  this suit  on her  own behalf  and on  behalf of the estate  and  the dependants  of the deceased  namely Joe Muchiri –son  23 years  and Hilda Wangari Wangondu – 18 years.

Only the  2nd defendant  entered  an appearance  and filed  defence  to this suit.  The 1st defendant  neither  entered  appearance  nor filed any defence  and on 23rd January  2008 exparte interlocutory judgment  was entered against  him.  The suit  was thereafter  set  down for   hearing after  the  plaintiff and  2nd defendant  complied  with all the pre-trial  requirements  under Order  11  of the  Civil Procedure  Rules.

Both  sides  called  witnesses to support  their  rival positions  with the plaintiff  maintaining  that  the accident  was  caused  due to the  negligence  and  or recklessness of the 1st defendant  driver /beneficial owner  of the accident motor vehicle  whereas  the  2nd  defendant  was the registered  owner  of the accident motor vehicle.

The 2nd defendant on the other hand  denied the  plaintiffs  claim and in particular  stuck to his guns that the  motor  vehicle  in issue  did not belong  to him at the material time  of the accident  and that therefore  he could not be held  liable for the fatal accident and prayed for dismissal  of the plaintiff’s  suit with costs.

PW1 Abraham Kamau testified on  oath that on  5th January 2007 he  was  at work  in Umoja  Estate  doing  his usual  grocery  business when  a Nissan matatu came in  high speed from Moi  Drive entering through a wrong side  of the road   and knocked  a  pedestrian  who was walking  beside  the road.  The pedestrian’s name was John Charles Wangondu   who was standing when he was knocked and pushed to a distance and he was thrown off before   the matatu stopped.  PW1 ran to the scene and saw the person who was knocked.  The matatu driver and conductor came out of the vehicle, picked the injured pedestrian, placed him inside the matatu and left said they were taking him to hospital.

The witness followed the matatu to confirm tobwhich hospital they were taking the injured pedestrian.  He went to Emaus and Victory Hospitals but he never found any report of admission of the injured pedestrian.  He therefore went and reported to the Chief’s office at Umoja.  He later informed the police on patrol at 10. 00pm of the occurrence of the accident.  He recalled that the accident occurred at about 9. 30 pm.  The accident car was KAN 039L although he did not know its driver and conductor.

PW 1 further testified that the following day, between 11 am  and 12. 00 noon he saw two youths  asking whether  he had seen any accident at the scene  and he  accompanied  the two youths  to their house  where they found their  mother  whom the  witness  learnt  was  his customer  and knew her well.  She accompanied PW1 to Buruburu Police Station where the PW1 recorded his statement on 6th May 2007 on the occurrence of the accident. PW1 did not know the owner of the motor vehicle.  She blamed the driver of the accident motor vehicle for driving carelessly and recklessly thereby knocking and fatally wounding the pedestrian who was off the road.

In cross examination by Mr Mugo Counsel for the 2nd defendant, PW1 stated that he had been a grocery dealer for many years.  He denied knowing the 2nd defendant   although he knew many churches in Umoja including   Deliverance Church Umoja.  He stated that he knew Bishop J.B. Masinde whom he usually saw on television preaching and whom he could recognize if he saw him.  He stated that it was not the said Bishop that he saw driving the motor vehicle at the time of the accident.  He confirmed visiting Emaus and Victory Hospitals as Mama Lucy Hospital had by then not been established.  He stated that he did not visit Metropolitan Hospital.  He further stated that he expected the driver to take the injured pedestrian to the nearest hospital for first aid.  That if he saw the driver today he would not recognize him.  That he  recorded  the registration  number of the  accident motor vehicle  as  there  was sufficient light. He stated that there  were other people at the scene and that he did not ask the driver   as to what hospital they  were taking  the deceased as they picked  him hurriedly.

PW1 further stated  that he  boarded a matatu  and followed   the offending  vehicle  and alighted  at Umoja 2  near  the Chief’s office where Emaus  and Victory Hospitals are when  he  saw the offending  vehicle  turn to Umoja  2 but he did  not catch up with it.  He denied knowing the deceased nor his two children who went to ask about the accident and whether anybody had witnessed the said accident.

The plaintiff testified as PW2.  She took oath and stated that she was the widow to the deceased.  She adopted her witness statement recorded on 26th May 2013 and filed in court on 29th April 2013.  PW2 stated that on 5th January 2007 her husband never returned home.  She tried searching for him but his telephone was off.  The following  morning she  started  contacting   his  friends  to know whether  they had  information  on the deceased’s  whereabouts but none of them was aware.  At 8. 00a, m. PW2 received a telephone call from Buruburu Police Station.  She went there and reported and recorded statements.  PW2 was later issued with a police abstract and she paid shs 400.  She produced the receipt as P exhibit 2.  An autopsy   was carried out on the deceased’s body.  She produced the report   of the mortician as P exhibit 3 and a receipt for shs 2600/- P exhibit 4 a and b being the mortician’s charges.  She also produced receipts showing funeral announcement as P exhibit 5 a, b and c.  She produced receipts for the venue for funeral arrangement meetings   as P exhibit 6.  She also  paid shs  4000/-  at the mortuary for preservation  of the body, P exhibit 7   receipt  for coffin  at shs 8500, P exhibit  8  transport  cost for  the hearse  at shs 29,000, P exhibit  9a,b,e , produced   a burial permit  as P exhibit  10 and  death certificate  P exhibit 11.  She also  produced  a grant in  a succession cause from  Milimani High Court as P exhibit  12  and  receipt P exhibit   13 for  shs 22,000/- being legal  fees.

PW2 testified that she later learnt that Mr Moses Amadi the 1st defendant was charged before Makadara Law Courts with failing to keep the driver’s employment records Contrary to Section 111 of the Traffic Act.  He was convicted and fined shs 2,000/-.  She produced copy of charge sheet as P exhibit 14 and proceedings from Makadara Law Courts as P exhibit 15 in Traffic case No. 2305/2007.

PW2 testified further that the deceased supported her with her children.  She produced their  birth certificates as P exhibit 15 a and b.  That he was a businessman trading in the firm name of Wamu Commercial Enterprises.  She produced the firm’s registration certificate as P exhibit 16.  That he used to earn about shs 75,000.  She produced his bank statement as P exhibit 17 from KCB KICC Branch.

PW2 stated that she  did not  know the  owner of the accident  motor vehicle  but she  obtained  search certificate/copy  of records  which  she produced as P exhibit  18(a)  and receipt  for shs 5000 as P exhibit 18(b).  She also produced demand letters to the defendants as P exhibit 19(a) and (b).  She stated she had suffered loss.  The deceased used to pay shs 10,000/- per month in college feesa.  She produced receipts as P exhibit 20 and that she now struggles to eke a living and cater for her family.  She prayed for damages  for the loss of her husband and he pain he suffered before his death and special damages.

In cross examination  by Mr Mugo  advocate for the  2nd defendant, the plaintiff stated that   the traffic  court proceedings showed  that Moses Amadi  was  charged in court  as the owner of the motor vehicle  that  had caused  the accident  and that  she did not know  the actual owner of the  accident motor vehicle  until after obtaining copy of  records.  The plaintiff  also stated that she   used to live in  Inner core  but that  she now lives  in Rongai  and that  she goes  to Jehova’s  Witness  Church.  That she knew  Deliverance  Church Umoja  and that  she also knew  Bishop J.B Masinde  but that  she was  not told that he drove  the accident motor vehicle at the material  time save that the copy of the records  revealed him as he owner  of the accident  motor vehicle.  She denied even meeting the 1st defendant personally.  In reexamination by Mr Mwenesi, for the plaintiff, PW2 stated that only a search certificate made her aware of the name of JB Masinde being the owner of the accident motor vehicle.

At the close of the plaintiff’s case both parties advocates agreed to the production of police abstract by consent and it was produces as P exhibit 1.

The 2nd defendant  called one witness DW1 Jack Mutua Ndalamiawho testified  that he worked for  Deliverance Church Umoja  as the administrator  under Senior Pastor  Bishop John Masinde  Makomere  who is  also one of the trustees of Deliverance Church worldwide and that he had full knowledge  of this case.

DW1 testified   that the motor vehicle registration number KAN 039L was registered in the names of John Masinde Makomere as the Trustee of the church.  That  the motor  vehicle  was  bought by the  church and registered in the trustee’s  name  because  at that  time the church did not  have a Personal Identification Number certificate as required by law.  He produced  a sale agreement  dated  3rd May 2016 between the 2nd defendant  and the 1st defendant wherein  the vehicle  was being  sold to the 1st defendant  and that after the said sale, all transfer  documents   in favour   of the   1st defendant  were  surrendered to him and he even paid  for the vehicle  vide  Electronic Funds Transfer in favour  of Deliverance Church Umoja on 11th May  2006 through Barclays  Bank Queensway  Branch  in the sum of shs  250,000.

DW1 also stated that the vehicle had   been valued at shs 250,000 by AA of Kenya   on 6th April 2006.  That on 24th April 2007  the second  defendant informed  the Registrar  of Motor Vehicles by letter that the vehicle had been sold  to the  1st defendant  on behalf of Deliverance Church Umoja  and that as  at 5th January 2007 the vehicle  had already changed hands in  May  2006  in favour of Moses Amadi the 1st defendant, when the accident took place hence the  1st defendant is the one  who was in  possession of the accident motor vehicle  then, and not  the 2nd defendant, since the  vehicle had been sold to the 1st defendant .

According  to DW1, it  was the  responsibility of the  1st defendant  to cause the registration of the motor vehicle  into his  name as  he  was given all the title  documents relating to the accident  motor vehicle, prior  to the material accident.  DW1 produced nine exhibits   as D exhibit  1-9 which included  sale of the motor  vehicle  agreement, letter to Registrar  of motor vehicles  by the 2nd  defendant, as well as a letter  notifying the  plaintiff’s  advocate after receiving demand notice on the accident that the  2nd defendant  was not the owner of the accident  motor vehicle.  He also produced  transfer  form duly  signed by the 2nd defendant, the latter’s national identity  card, copy of  log book, bank slip  where the 1st defendant  transferred purchase  price into the account of the 2nd defendant  on 11th May  2006, PIN for  the 2nd defendant  and the  1st defendant, and AA of Kenya  valuation/inspection report.

DW1 further testified that the 2nd defendant  could not be held  liable for  the accident since  he  was neither  the owner thereof  nor a beneficial user or in  possession of the accident motor vehicle at the material time vehicle  and  urged the court to dismiss the  plaintiff’s  suit as  against the  2nd defendant.

On  being cross examined  by Mr Njoroge  counsel for the  plaintiff, DW1 stated that  the transfer  of the motor vehicle  was not  done and  that the letter  D exhibit  1 was send to the Registrar of  Motor Vehicles  by the 2nd defendant  after the accident. In further cross examination, the 2nd defendant’s witness  stated that   when they wrote the letter dated  24th April  2007 they had not received   a demand notice from the plaintiff’s advocate and  were doing do out of  diligence.

At the close of the respective parties’ cases their advocates filed submissions. The plaintiff’s submissions were filed on 18th December 2015 raising two issues for determination –one on liability of the defendants and the other on quantum of damages payable.

On liability, the plaintiff urged the court to find the  1st defendant  automatically  liable  for the subject  accidence since he  neither  entered  appearance nor   filed defence  as a result of which  exparte interlocutory judgment   was entered  against him.

As against the 2nd defendant, the plaintiff’s counsel submitted that the 2nd defendant is liable for the subject accident jointly with the 1st defendant for reasons that:

The 2nd defendant was the registered owner of the material accident as evidenced by the copy of search from Kenya Revenue Authority.  Further, that Section 8 of the Traffic Act is clear that “A person in whose name a vehicle is registered shall, unless the contrary is proven, be deemed to be the owner of the vehicle.”

That the sale  agreement  showing  sale of  the vehicle  to the 1st defendant  by the 2nd defendant  before  the subject accident  does not  suffice  for purposes  of lifting  liability against the  2nd defendant  for reasons that:

It is not  a valid  agreement  as it has no stamp  duty affixed on it  contrary  to the provisions of  Section 19 of the Stamp Duty Act which provides that :

“ No instrument chargeable  with stamp duty shall be  received in evidence  in any proceedings whatsoever, except  (a) in  criminal proceedings and (b) in civil proceedings  by a collector  to recover  stamp duty, unless it is duly stamped.”

According  to the plaintiff, the motor  vehicle  search records  and the  unstamped   sale agreement  both  indicate that  the 2nd defendant  is the owner  of the subject motor vehicle  and that bank payment  slips  show that payment  was made to Deliverance Church Umoja  and  not the  2nd respondent.  That there   was no nexus proven  between the  2nd defendant and  the named church  hence the court  cannot simply conclude  that the 2nd defendant   received any monies for the alleged  sale.

Thirdly, that the subject motor vehicle  was never transferred  to the alleged buyer being the 1st defendant and  that in the absence of proof that  the car was actually sold, the court is  bound to concur  with the plaintiff’s  argument that both defendants  are liable.

Further,  that the  letter of 24th April 2007 was  written by the 2nd defendant to Kenya Revenue Authority  after the occurrence of  the subject accident  hence it   was done to cover up  the  actual state  of affairs  as the letter  was not  even stamped as received by Kenya Revenue Authority.

On the issue of quantum of damages, the plaintiff’s counsel submitted that under the Law Reform Act, the plaintiff was entitled to:

Pain and suffering   shs  100,000

Loss of expectation of life shs  150,000

Under Fatal Accident Act

On Loss of dependancy –  The plaintiff submitted that the deceased

earned in excess of shs 75,000.  He   was aged 53 years.  He would have continued   with his business and settling  all family utility bills for another 12 years.  His dependancy ratio was  proposed at 2/3 hence 75,000 x 12 x 12 x 2/3 = 7,200,000.

Special  damages: shs  83,000

on costs the plaintiff  submitted  that the  defendants  should be  condemned  to bear the  costs of the suit  jointly and severally.

In the end, the plaintiff pleaded for shs 7,533,300 damages together with costs.

In his opposing submissions, the 2nd defendant’s counsel Mr Mugo submitted only on the issue of liability and costs of the suit. On liability attributed to the  2nd defendant, the 2nd defendant’s counsel contended that he had adduced evidence to prove that  albeit he  was the registered  owner of the  accident motor vehicle at   the material time, but that he had passed that  ownership to the benefit of the 1st defendant by a sale at a consideration of  shs  250,000/- on 11th May 2006  and that  he did  subsequently notify the Registrar of  Motor Vehicles on 24th April  2007 informing him of change of ownership of the material motor vehicle KAN 039L.

Further, that the  2nd defendant  at the time  of accident was not  in control  or possession of the subject  motor vehicle and that having  sold it  and passed possession  to the  1st defendant, it is the latter  who had the duty to cause  the transfer  thereof in his name.  Reliance  was placed on Joseph Wango Kamau  V German Agro Action [2010] e KLR  where the court reproduced  Section 8  of the Traffic Act and held that where  there  was a sale agreement, transfer  form of ownership of a motor vehicle to a third party, a signed  form  and report of transfer to the Registrar of Motor Vehicles, the  respondent’s  ownership of  the motor vehicle  was divested as at the time of accident and  especially where there  was no evidence that  the motor vehicle was being  driven by the respondent’s  servant or agent  or for the respondent’s benefit.

It  was therefore  submitted that the  facts of  the above case  being  similar to the facts of this case  bearing in mind  that the 2nd defendant  wrote to the plaintiff’s advocates upon receipt  of the demand  notice, bringing  to their attention the facts of the change of ownership  of the motor vehicle, that it was therefore  incumbent  upon the plaintiff  to follow up those leads and leave  the second defendant out of  the suit.  The 2nd defendant therefore urged this court to find that this suit cannot stand against him and dismiss it with costs.

Determination

I have  carefully considered  the pleadings in this  case, the evidence  adduced by both the  plaintiff’s and  2nd defendant’s  witnesses, the documentary  evidence  produced  as well as  the rival submissions  filed by the parties’ respective  advocates and the 2 authorities relied  on as well as the statute law  cited. In my view, the following issues fall for determination.

Whether  the plaintiff has  proved, on a balance of probabilities  liability against  the two defendants and if so

What is the quantum of damages   payable to the plaintiff.

What orders should this court  make.

Who should  bear costs of this suit.

On the first  issue of  liability, this court  will make a determination  on liability by asking an ancillary  question of who between the 1st and 2nd  defendant  was  the owner of the accident motor vehicle  at the material time of the accident; before making a  finding as to who was to blame  for the accident. This is so because liability can only attach to a party who will be found to be the actual owner of the material accident motor vehicle and on whose behalf  or benefit the driver, agent or servant was found to have been driving at the material time.

The pleadings by the  plaintiff  are clear  that the 1st defendant  is the beneficial  owner of the subject  accident motor vehicle, whereas  the  2nd defendant   was described  as the registered owner of the  subject accident  motor vehicle.  On the part of the  2nd defendant, it  was pleaded that albeit  he was the registered  owner  thereof, but that he  was not the actual owner  of the accident motor vehicle, having sold it  and passed  possession  to the  1st  defendant by an agreement dated  11th May 2006, and receiving consideration  by Deliverance  Church Umoja  for which  he was  a trustee.  The 2nd defendant’s  witness DW1 did testify  in court and produced  copies  of sale agreement  in question, logbook, letters to Registrar of Motor Vehicles, evidence of  payment/receipt   of consideration  from the 1st respondent, signed  transfer form dated 12th May 2006, PIN certificates for  both buyer and seller  and AA of Kenya technical  inspection report/valuation report made on  6th April 2006.

The plaintiff  on the other hand  maintained that ownership is by registration and that no contrary  evidence   was adduced   by the  2nd defendant.  Further, that the  documents  produced by the  2nd defendant  were not genuine for reasons, among others, that  the  letter to Kenya Revenue Authority  was written after  the accident, the payments for sale  were made in  favour of  Deliverance Church Umoja; and  that the sale   agreement   was not sufficient proof  of ownership  of the accident  motor vehicle by the 1st defendant and  that in any event it had no stamp duty  paid.

The law regarding  ownership  of motor vehicles  is as  was correctly  cited by both parties  advocates which is Section 8  of the Traffic  Act  which enacts  that:

“ 8. The person in whose name  the motor vehicle is registered  shall unless the contrary is proved be  deemed  to be the owner of the motor vehicle.”

In the instant case, the plaintiff clearly pleaded at her paragraph  4 of the plaint filed on 10th August  2007  that the  1st defendant  was the  driver and/or beneficial owner of  motor vehicle  registration No.  KAN 039L  whereas  the 2nd defendant   was the registered  owner thereof.

The  police abstract  obtained  from the police  dated 23rd January 2007  clearly indicated the owner  of the accident motor  vehicle   to be one Moses  Amadi  of Box  273 Turbo.  The said  motor vehicle   was insured  by Blue Shield Insurance  Vide No. 088/001115/06/05/B59.

In addition, the plaintiff’s  own exhibit, which is the court traffic  proceedings  in Makadara  Chief  Magistrate’s  Court in Traffic Case  No. 2305  of  2007  is clear that  on 6th February  2007   the 1st defendant Moses  Amadi  took a plea  to the charge  of failing  to keep  written  records of the driver  employed  by him contrary to Section 111 of  the Traffic Act.  The date  on which the offence  was stated  to have been committed  was on 6th January 2007 and the motor vehicle  for which the driver’s  records   were not  kept   was KAN 039L.  The first defendant, according to the proceedings, pleaded guilty to the charge  as above and   was convicted  on his own plea of  guilty and  was fined  a sum of  shs 2,000/- in default, to serve  one month imprisonment  by Honourable S. Karani, Senior Resident Magistrate.

Even  with such kind of  glaring admitted evidence proving   actual ownership of the subject motor vehicle, this  court is left  wondering why   the plaintiff  insists  on ownership  of the motor vehicle  in question by registration.

Whereas  ownership  of motor vehicle  would not  perse be  proven by  the production  of  particulars  contained  in the produced  police abstract  which is a public  record, in this case, the contrary  was proved that despite the 2nd defendant  being the  registered  owner thereof, he  was not the actual/beneficial owner of the  accident motor  vehicle at the material time of accident.  If that   were not  the case, one wonders  why the  1st defendant would go to the extent of admitting to a traffic charge that  he employed   a driver to drive the  said motor vehicle  and that he failed  to keep the records  of that  driver   thereby  breaching  section 111  of the Traffic Act.

This court does agree that the best way to prove ownership  of motor vehicle  is to produce to court a document  from the Registrar of Motor  Vehicles  showing who  the registered  owner is  but when there  is overwhelming  evidence from, not only  the police records  as per the abstract  produced, the court proceedings in  a traffic  case showing that the owner  of the accident  motor vehicle   was arraigned  in court, charged  and convicted  for a  traffic  offence of failing to keep records  of his driver  of the material  motor vehicle  at the material  time of accident  as pleaded: it  would be  absurd to ignore  such evidence   and insist that the owner thereof  is the registered  owner and therefore the 2nd defendant in this suit.

The question of whether the suit motor vehicle was owned by the 2nd defendant is therefore a settled on. It was pleaded by the 2nd defendant and his witness did testify on oath before this court that at the time of the accident he had on behalf of the Deliverance Church of Kenya as its Trustee/registered owner of the material accident motor vehicle sold the vehicle to one Moses Amadi and surrendered the log book and duly executed the transfer form and hence he did not have any interest in the management and/or control thereof. This Court appreciates that Traffic Act is an Act of parliament to consolidate the law relating to traffic on the roads; it is not an Act which decides de facto or de jure ownership of vehicles hence ownership of vehicles passes by sale and delivery and registration books are only evidence of title and property passes in accordance with the Sale of Goods Act when the contract of sale is made, as was held in the Osumo ApimaNyaundi vs. Charles Isaboke Onyancha Kibondori & 3 Others Civil Appeal No. 46 of 1996 case.

Furthermore, this court finds that the 2nd defendant, on a  balance of  probabilities exonerated himself  from being the  owner  of the accident  motor vehicle  by producing   evidence of sale  of the vehicle  to the 1st defendant  on 11th May 2006, receiving  payments  on 12th May  2006, parting with  its possession by signing  of a  transfer   forms  and  even writing  to the Registrar  of Motor Vehicles concerning such change of  ownership.  Albeit  the plaintiff’s  counsel contended that   there  was  no stamp duty  on the sale agreement   and that the recipient of the money  was  Deliverance Church Umoja  and not John Masinde  Makomere, there is more than sufficient  evidence of not only the date  as adduced  by DW1  but of actual ownership  by way of court proceedings  and charge sheet  produced  by the plaintiff herself  that Moses Amadi was the owner  of the accident  motor vehicle.  In addition, DW1 clearly explained that the said vehicle  had been purchased  by Deliverance  Church Umoja  but registered  in the name  of John Makomere Masinde  one of the Church trustees  because  the church did  not have a PIN  at that time.  The  plaintiff  did not  deny that   the 2nd defendant  was  the Senior Pastor  and Bishop  at Deliverance  Church, Umoja and or that he was one of the Church Trustees thereby creating  a nexus  between him and the  church as  well as  explaining the reason why the purchase  price paid  by the 1st  defendant   was  receipted  in the church bank account  and not in the  2nd defendant’s personal account or name.

There  was  no evidence  adduced  that would suggest   or make  this court infer  that John Makomere  Masinde  could have  been so dishonest  that he  falsified   documents   relating  to the accident motor vehicle to suit  his defence  in this case.  To the  contrary, the 2nd defendant’s advocate  did at  the earliest  opportune time notify the plaintiff’s advocate, and which notification  was before this suit  was filed, that the 2nd defendant    was not  the owner of the motor vehicle    herein.  The 2nd defendant’s counsel send to the plaintiff’s advocate all documents proving that  the 2nd defendant   parted  with possession and interest in the motor vehicle    in favour   of the 1st  defendant but the plaintiff  chose  not to hear of it and insisted  on filing this suit against the 2nd defendant on the basis of  registration  documents, yet the  2nd defendant had by his  evidence  parted with  the original documents to facilitate  transfer  in favour of the 1st defendant.

On the issue of stamp duty not being paid on the sale of motor vehicle agreement,  I can do no better than approvee Makhandia, J (as he then was) in Bishop Henry Paltride vs. James Mugo Mbuthu & Another Nyeri HCCC No. 65 of 2001 where the learned Judge stated:

“in regard to non-admissibility of unstamped instruments in evidence, although the law under section 19(1) of the Stamp Duty Act is that receipts not having a revenue stamp may not be admitted in evidence, it is noteworthy that the defendant’s lawyer did not object to their production in evidence during the hearing. He cannot now take the objection in his written submissions.”

The above situation is what exactly transpired in this case. No objection having been raised before the document was produced, it would be prejudicial to the 2nd defendant to allow such an objection at the submissions stage as he was never given an opportunity to be heard on that issue substantially. But even If that were not the case, the case of DIAMOND TRUST BANK (K) LIMITED VERSUS JAS WINDER SINGH ENTERPRISES (1999) 2 EA 72decided by the Court of Appeal provides an answer to whole question of failure to comply with section 19 of the Stamp Duty Act. The court was referred to the judgement of Owuor JA (as she then was (now rtd). At page 79 line 18 from the bottom the learned judge (as she then was) made the following observations:-

“The learned judge also found that the agreement could not be enforced because they contravened section 31 of the stamp duty Act (chapter 480). In view of my above findings, it suffices to state section 19 (3) 20, 21, and 22 of the same Act (Stamp duty Act) provided relief in a situation where a document or instrument had not been stamped, when it ought to have been stamped. The course open to the trial judge was as in the case of SUDERJI MANJI LIMITED VERSUS BHALOO (1958) EA 762 at 763 where law J ( as he then was) quoted with approval the holding in Bagahat Ramu Raven Chand (2) (1930) AIRal 854 that:-

“Before holding a document in admissible in evidence on the sole ground of it not being properly stamped, the court, ought to give an opportunity to the party providing it to pay the stamp duty and penality…….the applicant has never been given the opportunity to pay the requisite stamp duty and the prescribed penalty on the unstamped letter of guarantee, on which he sought to rely in his support of his claim against the second Defendant/Respondent and he must be given the opportunity. Although it was the respondent was relying on the unstamped agreement, there was the offer by the appellant counsel to be given a chance to have the agreements stamped. This in my view was the correct step in terms of section 19 (3) of the stamp duty Act.”

I accept the above holding and add that indeed, it is not fatal for a party to fail to pay stamp duty on an agreement for sale of a motor vehicle where such duty could be paid at a later stage. I therefore find the plaintiff’s arguments devoid of merit and dismiss them as far as the agreement for sale of the subject accident motor vehicle produced by the 2nd defendant is concerned.

I am in total agreement  with the 2nd defendant’s submission that it  was the duty of the plaintiff to prove that  the 2nd defendant   was  the actual owner of the  accident motor vehicle KAN 039L having  pleaded  and proved that the  1st defendant  was its  beneficial owner.In Lukungu V Lubia Uganda  Supreme Court  case No. 4/2001 LLR No. 162 (SCU) the court held that:

“……..in order for the appellant  to fix liability on the respondent for the negligence of Kawuma it was necessary  to show that the driver was using the  vehicle at the owner’s request, either express or implied  or on his instructions and  was  doing so in the performance  of the task  or duty thereby delegated  to him by the owner.”

In this case, there   was indeed  clear and uncontroverted  evidence  that the  1st defendant  was  the beneficial  owner and in possession of the accident   motor vehicle at the material time of  the accident.  Further, the police  records  and court proceedings  too attest  to that fact  of the 1st defendant’s  ownership of the subject motor vehicle. In Nancy Ayemba  Ngara V Abdi Ali HCCA  107/2008 [2010] e KLR  Ojwang J ( as he then  was ) 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 cognizant of the fact that a different  person, or different  other person, may be the defector owners of  the motor vehicle, and so the traffic  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 purpose, 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 on question….”

Quite recently, the Court  of Appeal  in Joel Mugo Apila V  East African Sea Food Limited, CA 309/2010[2013] e KLR further  observed that:

“ In any case in our view, in exhibit in evidence and in  this case, the  appellant’s  evidence  that the police   recorded the  respondent  as the owner  of the vehicle  and onman’s  evidence  that he saw  the vehicle  with words  to the effect  that the  owner  was East African  Sea Food  were nit  seriously  rebutted by the respondent who  in the end  never offered any evidence to challenge  or even to  counter that evidence  we think, with respect, that the learned  judge  in failing  to consider  indepth the legal position  in respect  of what us required to prove ownership, erred  on a point of law  on that aspect.  We agree 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 when the abstract   is not challenged  and is produced in court  without any  objection, its  contents  cannot be  later denied.”

The same Court of Appeal  in Securicor Kenya  Ltd V Kyumba  Holdings Ltd  held that:

“ We  think that the  appellant had  by the evidence  it had led, proved, on  a balance  of probabilities  that it  was not the owner  of  KWJ 816  at the time of the accident occurred since it had sold it.  Our holding  finds  support  in the decision of Osapil V Kaddy [200] 1  EALR 187 in  which it  was  held by the Court of Appeal of Uganda  that  a registration card or   log book  was only  prima facie  evidence  of title to a motor vehicle  and the person whose  name the  vehicle  was registered  was presumed to be owner  thereof  unless  proved otherwise.”

The above decisions  find support in Morgan V Launchbuy where the  court, in making a finding  on the question of vicarious liability  held that:

“ In order to fix liability  on the owner  of a car for the  negligence of  a driver, it is  necessary to show either  that the driver   was the owner’s  servant  or at the material time the driver  was  acting  on the owner’s behalf  as his agent.  To establish  agency  relationship it is necessary to show that the driver  was using the car at the owner’s  request, express or implied or on its instructions and  was doing so in the  performance  if the task or duty  thereby delegated to him by the owner.”

In the instant  case, there is absolutely  no evidence  that the undisclosed /unknown  driver of the  accident motor vehicle  was  driving, managing   or controlling  the said motor vehicle for the benefit of or on the  instructions of the 2nd defendant  or that he  was  in employment  of the  2nd defendant.  The admission of the traffic  charge  of failing to keep records of a driver  in his employment by the 1st defendant sums  it  all as  was held by  the Court of Appeal in the case of  Pritoo V West  Nile District  Administration [1968] EA  428 and Karisa  V Solank [ 1969] EA  318that :

“ Where  it is proved that a car has  caused damage by  negligence, then in the absence  of any  evidence to the contrary, a presumption  arises that  it was driven by a person for   whose negligence  the owner is  responsible.  This  presumption is made stronger  or weaker  by the surrounding circumstances  and  it is not  necessarily disturbed by the evidence that  the car was lend  to the driver  by the owner  as the mere fact  of lending  does not  of itself  dispel  the possibility that it  was still being driven for the  joint benefit  of the owner and  the driver.”

Under the provisions of Section 44 of the Evidence Act, a conviction by the traffic court is conclusive evidence of negligence. Section 47A of the Evidence Act further provides:

“A final judgment of a competent court in any criminal proceedings which declares any person to be guilty of a criminal office shall ---- be taken as conclusive evidence that the person so convicted was guilty of that offence as charged.”

Although the traffic case subject of this case was not one of negligence, but it related to ownership of the accident motor vehicle in that only the owner of a motor vehicle could be charged with such an offence of failing to keep records and particulars of the driver. The owner thereof having admitted the offence as charged, this court does not find any merit in the plaintiff’s insistence that the 2nd defendant is jointly liable with the 1st defendant.

Accordingly, it is  my finding  that  it is  not the  ownership of a motor vehicle by registration  alone that would determine  who the  actual owner  of a motor  vehicle  is, where there  is evidence  to the contrary like in the instant  case.  In the end, I find that  the 1st defendant as  correctly  pleaded   by the plaintiff, was on the available evidence  the  beneficial/actual owner  and in possession and use  of the accident  motor vehicle  at the material time  of the accident  involving  the  deceased.

Further, I find  that there is  absolutely  no evidence and or reason why  the  2nd defendant   was enjoined  to these proceedings  since prior to institution of  suit herein, he  had supplied to the plaintiff’s  counsel all the information and documentation  regarding  ownership of the subject motor vehicle.  I therefore   have no  option but to  order as  I hereby do, that the name of  the 2nd  defendant  John Makomere  Masinde aka Bishop J.B Masinde  be and  is hereby struck  out of the suit  herein.  He  was in my view, wrongly joined to the proceedings  herein.  The claim against him is  hereby dismissed.

What remains is the cause of  action  against the  1st defendant  Moses Amadi whom this court  safely  finds that  he  was the  beneficial and actual  owner of the accident  motor vehicle.  Despite  being served  with summons  to enter appearance, he neither  entered  an  appearance nor filed  a defence to rebut or  controvert  the evidence adduced  by the plaintiff  both an liability  and quantum.

On liability, it is not  disputed  that indeed  there  was an  accident on the 5th day of January  2007  involving  the deceased  Charles  Wangondu Muchiri  and motor  vehicle  registration No.  KAN 039 L  belonging  to the 1st defendant  Moses Amadi ( now sole  defendant) and being driven  by a driver in the employment  of the said defendant , and whose  driver’s  records  the defendant  failed to keep leading to a traffic charge being  preferred  against the  defendant, that  of failing to keep records of a  driver in  his employment  contrary to Section 111  of the Traffic Act.

It is  also not  rebutted that  the deceased  was lawfully  walking  along the road  Moi on  Drive Umoja  Estate  in Nairobi  when he  was fatally  knocked down by a driver  who veered  off the  road, hit him, stopped, picked  the deceased, drove him off  to unknown  destination  only for the deceased’s  body  to be traced  at the city  mortuary.  The driver  disappeared.  Fortunately the plaintiff, PW1 Mr Abraham Kamau  who is also  named  as a witness in the police  abstract  was at the  scene of accident  and  was able  to take the particulars   of the accident  motor vehicle.  PW1 was clear  in his uncontroverted  evidence  that the driver of the  accident  motor vehicle   was careless  because he knocked d the deceased  pedestrian  who was off the road and that the driver was driving in the wrong direction.

It is  now trite law that  motor vehicles  which are  well driven, well maintained  and  well managed  do not just  cause  or get involved  in accidents.  There  must be a  cause.  In this case, the driver did not testify to tell the court why he veered  off the  road and  followed  and knocked  the pedestrian fatally.  He must  have been negligent  by driving  without due  and care or other road  users  especially the deceased  pedestrian who was  off the road.  In the circumstances, and  on a  balance  of probabilities, I find the   plaintiff has proved  that  the driver  of motor vehicle  registration  No.  KAN 039L was grossly negligent  in the manner  he drove, steered/ managed  and or controlled  the above motor  vehicle registration No.  KAN 039L  thereby causing it to knock the deceased  and occasioning him fatal injuries.  Therefore,  the driver  thereof   was 100% liable  for  the accident .  There is evidence  from the  traffic  court proceedings  that the driver  in question   drove  the said  motor vehicle  as the  employee  of the defendant  and  was in the course  of his employment  with the defendant  when the accident  occurred.  Accordingly, the 1st  defendant  is vicariously  liable for the  negligent  acts of   his driver, agent  and or servant.  Both  are  found and held  liable  at 100%.

On what  quantum of damages  are payable  to the plaintiff, the uncontroverted evidence  on record  supporting  the pleadings is that  the suit  herein  was instituted  under the Fatal Accidents Act  (Cap 32) Laws of Kenya  and the Law Reform Act ( Cap 26) Laws of  Kenya.  It  was  brought  on behalf  of the dependants  of  the deceased  under Fatal Accidents Act and on behalf  of the estate  of the deceased  under the Law Reform Act.  The dependants  are listed  as:

Felicina  Muthoni Wangondu – widow

Joe Muchiri Wangondu ( son- 23 years)

Hilda Wangari Wangondu ( daughter 18 years)

The deceased   was said to be  a businessman.  That he used to earn shs  75,000  per month from  his business.  The plaintiff   produced  evidence of  registration  of his business in the name of  Wamu Enterprises  along Ronald  Ngala  Street, Nairobi on plot 209/816.  She  also produced receipts  for rent, school fees payment for  his children  in colleges; electricity  bills; and  bank statements  from KCB for the  Wamu enterprises.  The children’s  birth certificates  were also  produced  as exhibits.

Although  it  was submitted  that the  deceased earned  shs  75,000/- per month, no audited  accounts  of his business  was provided  to show  his drawings.  The bank statements  show that   he also had loans  to service  hence at  times the accounts were overdrawn.  It is  however  not denied  that on the evidence  available, the  deceased eked  a decent  leaving  from his business.  I would  in the circumstances  peg his  monthly  income  at shs  50,000/- less  30% Government  Income Tax.  He  was aged  53 years.  He would have actively  continued  to do his business upto age  65  as  a healthy business man.  There  was  no evidence  of  his health  being an  issue.  He paid  all his family bills, fees  for  his children and  rent.  I would  take a dependancy  ratio of  2/3  of his earnings  applied  towards  his family.

Thus, 50,000 x 30/100 = 15,000 tax. Earnings  per month  = 35,000. Dependancy ratio = 2/3 . Multiplier  = 12 years

Dependancy= 35,000 x 12 x 12 x 2/3 = 3,360,000 based on  the authority of Peggy Frances Hayes  & Others  V Chunibhai  J Patel & Another  CA/173/1956 where the  Court of Appeal  held that:

“ The court  should find  the age  and expectation  of  working life  of the deceased, and consider  the wages  and expectations of the deceased  i.e. his income   less  tax and the proportion of his net  income  which he  would have made  available  for his  dependants.”

As it  is not easy to get the  exact  monthly income from the  bank records  produced, I would  apply the principle espoused  in Constance Kanyorota Ngugi  V Coast Bus  Company Ltd & Another  Nairobi HCC  3444/94  where  Mulwa J stated that:

“  This  income  was based on  the invoice  he had compiled .  He  said this figure did not  take into   account  the tax element.  The  figures  given represented  the gross income  of the deceased  per month.  I note  that it is difficult  to get  the correct  figure  of income from  the records as they  were and  doing  the best I can  do, in the  circumstances  I would take the  deceased’s  income to be shs  20,000/- per month.  The  text would   be kshs  6,000/-.”

On pain  and suffering, there is  no evidence  as to whether  the  deceased died  on the spot  but  the death  certificate  shows  he  died on the material date of accident  on 5th January, 2007.  The plaintiff  proposed  shs  100,000/-  based  on  the case  of HCC  487/99 Nancy  Wanyonyi Maina v Stephen Thungu & Another. I would award   shs  100,000/- under this head as prayed.

Under  loss of expectation  of life I  award a conventional  figure  of shs  100,000/- based on the decision of Makano Makonya Monya  Uche V Helen Nyangena  [2014] e KLR. Total general damages; shs  3,560,000

On Special damages, the law regarding  special damages  is that they  must  not only be specifically pleaded  but must also be strictly proved.  In this  case, the plaintiff  pleaded particulars  of special  damages  as follows:

2 police abstract  forms shs  400

Certificate of death shs  50. 00

Search fees  shs  500. 00

Legal and filing fees for  grant of letters of administration shs 22,150. 00

Cost of  proceedings in traffic court  shs  120. 00

Funeral expenses  shs 3400. 00

Post mortem report  shs  100

Post mortem fees  shs  2500

Coffin shs  8500

Venue for funeral meetings shs  500

Hearse  29,000

Advertisement   16080

Total shs 83,300. 00

The plaintiff produced receipts  to prove  the above specials. I have  no reason to deny her the same.  I award  her shs  83,300. 00 special damages.  I also  award to the plaintiff  costs of this  suit and interest  both on general damages at court rates  from date of  this judgment  until payment in  full and on  special  damages  from date of  filing suit  until payment  in full.

Total general damages  Kshs   3,560,000;Special Damages: Ksh83,300. 00. total damages awarded=3, 643,300

For avoidance of  doubts this  judgment   is as  against  the  1st defendant alone  following  the striking out from the suit of  the 2nd defendant  and the plaintiff’s suit  against him  having been effectively dismissed .

On costs  for the 2nd defendant  although costs  follow the event and a successful party should not be denied  costs except  for good cause as espoused in section 27 of the Civil Procedure Act, Cap 21 Laws of Kenya,  in this case, however, I note that   the plaintiff relied entirely  on the specialized  legal advise  of  her advocates on record, who were in a position  to advise her   on whether or not  to enjoin the  2nd defendant  to these proceedings.  There is  no evidence  that she insisted  that the 2nd  defendant  must be  enjoined and or remain  a party to  these  proceedings to  the very end.  She was in my view, misled by her advocates.  I would in the  circumstances, have condemned her advocates to pay costs to the 2nd defendant since they are officers of the Court who ought to have known the legal position as explicitly set out in the various decisions of this court and of the Court of Appeal which are binding. However, considering that the 2nd defendant   who is a renowned  clergy, being the Bishop of Deliverance  Church  Umoja  and Trustee of the Deliverance Church in Kenya and Internationally, and who has ably exonerated  himself from liability in this matter, although the 2ndd defendant deserved costs of the dismissed suit,  in order to promote  the spirit of  forgiveness  and reconciliation  in society  which I believe  the good Bishop espouses, I order  that the 2nd defendant Bishop John Makomere Masinde bears  his own  costs of  this suit herein  which he has nonetheless vigorously defended with meekness, with the able representation by his counsel Mr Mugo to whom this court is grateful for his reverential conduct in this matter.

I further order that before the award under loss of dependancy is recovered and paid out; it must be apportioned between the dependants under the supervision of the court.

Those are the orders of this court.

Dated, signed and delivered in open court at Nairobi   this 14th day of April 2016.

R.E. ABURILI

JUDGE

In the presence of:

N/A for the plaintiff

N/A for the 1st Defendant

Mr Mugo for the 2nd defendant

Henry: Court Assistant