Fredrick Odongo Otieno v Al-Husnain Motors Limited [2020] KEHC 821 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT SIAYA

CIVIL APPEAL NO. 22 OF 2018

FREDRICK ODONGO OTIENO............................................APPELLANT

VERSUS

AL-HUSNAIN MOTORS LIMITED.......................................RESPONDENT

(Appeal arising fromthe judgment and decree of Hon. G Adhiambo, Senior Resident Magistrate at Ukwala in Ukwala SRMCC 1 of 2010 delivered on 20/7/2018. )

JUDGMENT

Introduction

1. This is an appeal from the judgment of Hon. G Adhiambo, Senior Resident Magistrate at Ukwala in Ukwala SRMCC 1 of 2010 in which the appellant claimed general and special damages for injuries sustained as a pedal cyclist along Kisumu Busia Road when he was hit by motor vehicle registration No. SR 400049046 alleged to belong to the respondent driven by one Kennedy Kadaji Lumwaji who never appeared before court.

2. The respondent filed a defence denying the allegations made by the appellant whilst stating that they did not know the aforementioned driver and neither did they own motor vehicle registration No. SR 400049046. The respondent adduced documentary evidence of the ownership of the said motor vehicle. The trial magistrate found that the appellant failed to prove the respondent’s ownership of the subject motor vehicle and despite finding in favour of the appellant on general damages of Kshs. 400,000, the same could not be recovered against the respondent but against Kennedy Kadaji Lumwaji who was the 2nd defendant in the trial court, but against whom the appellant withdrew suit.

3. The appellant was dissatisfied with the trial court’s judgement and filed a memorandum of appeal dated 7th August 2018 setting out six grounds as follows;

a) That the learned magistrate erred in finding the driver of the suit motor vehicle negligent and absolving the 1st defendant from blame.

b) That the learned magistrate erred in finding the 2nd defendant liable for the blame and yet he was not a party to the suit, as the suit against him was withdrawn by consent of both parties on 9/5/2012.

c) That the 2nd defendant having been found negligent, by dint of doctrine of Res Ipsa Loquitor, the 1st defendant ought to have been liable.

d) That the learned magistrate erred in relying on evidence that departed from pleadings on record.

e) That the learned magistrate erred in ignoring facts admitted in pleadings on record that the plaintiff had no burden of proving at the time of close of the plaintiff’s case.

f) That the finding occasioned grave injustice on the appellant.

4. The appeal was canvassed by way of written submissions.

Appellant’s Submissions

5. It was submitted that in its Defence filed on 20. 05. 2010, the respondent admitted that it was the owner of the suit motor vehicle as at 20. 03. 2009 and further stated that it sold the suit motor vehicle on that day but did not give particulars of whom the vehicle was sold to.

6. The appellant further submitted that on the 09. 05. 2012, the respondent absolved the 2nd Defendant, the driver of the suit vehicle, from any liability whatsoever when it consented to having him removed from these proceedings, in effect assuming his responsibility for negligence. It was submitted that the issue of ownership of the suit motor vehicle ought to have been resolved against the respondent.

7. The appellant submitted that the 2nd Defendant having been found negligent, by dint of the doctrine of Res Ipsa Loquitor, the respondent ought to have been found automatically liable as the accident occurred in the course of the 2nd defendant’s employment with the respondent.

Respondent’s Submissions

8. The respondent submitted that the appellant failed to discharge the burden of proof with regard to the respondent’s ownership of the suit motor vehicle. It was submitted that based on the evidence tendered in the trial court, the learned magistrate was right to find that the appellant had not proved that the suit vehicle belonged to the respondent whereas the respondent produced documentation showing that the said motor vehicle belonged to Odhaya Trading.

9. It was submitted that the case against the respondent having not been proven they could not be required to settle the damages awarded to the respondent, against a party who had been discharged from the proceedings.

Analysis & Determination

10. The role of this court on first appeal is to re-evaluate all the evidence availed in the lower court and to reach its own conclusions in respect thereof, as was restated in Oluoch Eric Gogo v Universal Corporation Limited [2015] eKLR.

11. I have carefully considered the evidence adduced before the trial court, the judgement, the grounds of appeal as a whole including the parties' written submissions. The issue main issue for determination are whether the evidence adduced by the Appellant was sufficient to prove ownership of the motor vehicle and hence liability of the Respondent.

12. It is not disputed that the appellant was involved in an accident on or about the 20/3/2009 as he was a pedal cyclist along the Kisumu Busia road at Nyaamwanga Primary School area with motor vehicle registration No. SR 400049046 leading him to sustain severe bodily injuries. It was the appellant’s case that as per the police abstract, the aforementioned motor vehicle was owned by the respondent herein. The appellant reiterated his claim in cross-examination and further stated that at the time of the accident he was not drunk. He further stated that as a result of the accident he was admitted to hospital for 3 days that is from the 20/3/2009 to 23/3/2009.

13. PW2 No. 64758 PC Rodgers Simiyu of Ugunja Police Station traffic department testified for the appellant and produced a police abstract for the accident involving the appellant and the suit motor vehicle herein. It was his testimony that the driver of the said vehicle one Kennedy Kodayi was charged with causing death by dangerous driving and that the motor vehicle belonged to the respondent. On cross-examination, he stated that he was not the maker of the police abstract and further that the information as to the investigation was provided by the driver of the suit motor vehicle. He further stated that though the driver was charged with causing death by dangerous driving in criminal case No. 221 of 2009, he could not tell who was killed and further that the abstract did not indicate when the said driver was charged.

14. The respondent gave testimony through DW1, Mohammed Musa Abdalla who introduced himself as an employee of the respondent for the past seven years. It was his testimony that the respondent was not the owner of motor vehicle registration No. SR 400049046 and to this effect he produced importation documents from the port that showed that the vehicle belonged to Odhaya Trading Company Limited. In cross-examination, he stated that there was no stamp showing that the importation documents were certified copy of the original. He further stated that the said importation document was dated a day before the accident occurred that is on the 19/3/2009.

15. Under Sections 107 and 108 of the Evidence Act Cap 80 Laws of Kenya, the person who alleges is under a duty to prove all allegations as contained in his claim against the Defendant, on a balance of probabilities, as was held in Kirugi & Another Vs Kabiya & 3 Others [1987] KLR 347 where the Court of Appeal held:

“The burden was always on the Plaintiff to prove his case on the balance of probabilities even if the case was heard on formal proof.” {Emphasis added}.

16. It was therefore incumbent upon the appellant to prove the occurrence of the material pleaded accident as well as the ownership of the accident motor vehicle.

17. In this case, the appellant sought to rely on the contents of the police abstract produced by PW2 on the ownership of the suit motor vehicle.

18. It is important first to consider the circumstances under which a court considers a Police Abstract sufficient proof of ownership.  The position taken by various courts as conceded by both parties in this appeal is that a Police Abstract when produced as evidence can be sufficient proof of ownership save where it is successfully challenged.  In the case quoted by the Respondents herein, Joel Muga Opija v East African Sea Foods Ltd [2013] eKLR the court in affirming this position held:

“in our view an exhibit is evidence and in this case the appellant’s evidence that the police recorded the respondent as the owner of the vehicle and Ouma’s evidence that he saw the vehicle with words to the effect that the owner was East African Sea Food were not 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 in depth the legal position of what is required to prove ownership erred on 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.”

19. The same court before arriving at the above finding had quoted with approval another Court of Appeal decision in the case of Ibrahim Wandera v P.N. Mashru Ltd. (Ksm C.A. Civil Appeal No. 333 Of 2003(unreported) where the court made the following observations:

“The issue of liability was not specifically raised as a ground of appeal before the superior court. Tanui J., proceeded as though the appellant had not presented evidence on ownership of the accident bus.  The learned judge with respect to him, did not at all make any reference to the police abstract report which the appellant had tendered in evidence.  In that document the accident bus is shown as KAJ 968W with Mashiru of P. O. Box 98728 Mombasa as owner.  This fact was not challenged………….”

20. The court found that the contents of a Police Abstract is sufficient to establish ownership of a motor vehicle.

21. It is also important to note that in civil cases, the standard of proof is that of balance of probabilities.  When an issue of ownership of a subject matter in a suit arises, a plaintiff or a party alleging it is required by law to prove the fact on a balance of probabilities.  This is unlike the position in criminal cases where the standard is higher to beyond reasonable doubt.

22. In my view forcing a litigant in civil cases to produce a certificate of ownership of a motor vehicle from Registrar of Motor Vehicles is, unless circumstances so demand, unnecessary and elevates the standard of proof to unnecessarily high levels of proof.  In the case of Superfoam Ltd & Anor v Gladys Nchororo Mbero [2014] eKLR Makau J sitting at Meru High Court cited with approval a Court of Appeal decision in Wellington Nganga Mathiora v Akamba Public Road Services Ltd & Anor [2010]eKLRwhere it was held:

“Where a police abstract was produced and there was no evidence adduced by a defendant to rebut it and not even……………challenged it, the police abstract being a prima facie evidence not rebutted could be relied on as a proof of ownership in the absence of anything else as proof in civil cases was within the standard of probability and not beyond reasonable doubt as in criminal cases……………..”

23. 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.”

24.  In Kirugi  &  Another  -versus-  Kabiya  and  3  others ( 1987)KLR  page  347  the  Court  of  Appeal  stated  that  the  burden  was  always  on  the  plaintiff  to  proof  his  case  on  the balance  of  probabilities  and  such  burden  was  present  even  if  the  case  was  heard  by  way  of   formal  proof.

25. In Thuranira  Kaururi v Agnes Mucheche [1997] KLR  the Court of Appeal stated:

“The  plaintiff did  not   prove  that  the  vehicle  which was  involved  in  the  accident  was  owned  by the defendant. As the defendant denied ownership, it was incumbent  on the plaintiff  to  place  before  the  Judge  a  certificate  of  search  signed  by  the  Registrar  of  Motor-vehicles  showing  the  registered   owner  of  the  lorry.  Mr. Kimathi, for  the  plaintiff,  submitted  that  the  information   in the  police  abstract  that  the  lorry  belonged  to the  defendant w as  sufficient   proof  of  ownership.  That cannot be  a serious  submission  and  we must  reject  it.”

26. In the instant case, in my humble view, appellant  was  bound  by his  pleadings  and indeed  prove  that   the  respondent  was  the  owner  of  the   motor-vehicle  and  since  the  respondent  had  denied  such ownership claim and  put  the   appellant  to  strict  proof,   nothing  would  have  been  easier  than  to  call  evidence  from  the  Registrar  of  Motor-vehicles showing  that  the  respondent  was  the registered  or beneficial owner  of  the   motor-vehicle  at  the  time  of the material accident. This was not  done  and  therefore in my humble view, the  appellant’s  case  was  not  proven  on  a  balance  of  probabilities.

27. I reiterate that the appellant had the burden to prove  that  the  defendant  was  the  registered  owner  or beneficial owner of   the  accident motor-vehicle.    A   party is said to bear the burden of proof,  if   he  would  lose  if  he  failed  to  discharge  that  burden.   In Miller-vs-  Minister  of  Pensions  ( 1947) 2ALL. ER 372as cited in  the  Court  of  Appeal in the  case of;  Ignatius  Makau  Mutisya  -vs-  Reuben  Musyoki  Muli  ( 2015) eKLR the  court  stated:

“That  degree  is  well  settled. It must carry  a  reasonable   degree  of  probability,  but  not so  high  as  is  required  in  a   Criminal  case.  If the evidence is  such  that  the  tribunal   can  say ‘we  think  it more  probable  than not.’   Thus, proof on a balance  or  prepondence  of  probabilities   means  a  win  however  narrow.  A  draw  is  not  enough.   So,  in  any  case  in which  the  tribunal   cannot  decide  one  way  or  the  other   which  evidence  to  accept,  where  both  parties   explanations   are  equally   unconvincing,  the  party  bearing  the  burden  of  proof  will  lose,  because  the  requisite  standard  will not  have been  attained.”

28. He   who alleges must  proof. Section  107,  108  and  109  of  The  Evidence  Actprovides  for  the  instance  of   burden  of  proof.   Section 107, 108 and 109   of The Evidence   Act    Cap 80 Provide as follows:

Burden of proof

(1) 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.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

108. Incidence of burden

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

109. Proof of particular fact

The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

29. A Party is bound by his pleadings, and what the appellant pleaded is that the respondent is the registered   owner of   the motor-vehicle in question.  The appellant  was  therefore  expected  to  adduce  evidence  in  support  of  that  allegation  to  prove  that   indeed  the  defendant  is  the  registered  owner  of  the  accident  motor-vehicle.

30. The   Court of  Appeal  in  the  case  of;  Ignatius  Makau  Mutisya  -vs-Reuben Musyoki  Muia  stated  that Section   8  of   the Traffic  Act  has been  interpreted  to  mean  that  the  registration  of  the  motor-vehicle  is   not  conclusive   proof  of  ownership and  cited  the  case  of :  OSAPIL  -vs-  KADDY  ( 2000)  1 EALA187  where the  Court  of  Appeal  of  Uganda  held  that:

“Registration card  or  logbook  was  only  prima facie evidence  of   title  to  a  motor-vehicle.    The person  to  whose  name  the  vehicle  was  registered  was  presumed  to be  the  owner  thereof   unless  proofed  otherwise.”  And   that the Court of  Appeal  adopted  this  interpretation  in the  case of Securicor Kenya limited -vs-Kyumba  holdings  Civil  Appeal  No.  73 of 2002.

31. The appellant  in  this  case  sought  to  prove  ownership  of  the  motor-vehicle  by  the  defendant  by  the  production   of  the  police  abstract.   The question iswhether the police abstract is sufficient to proof ownership.

32. The  Court  of  Appeal  in  the  case  of;   Joel  Muga  Opinja  -vs-  East  African  Sea  food  limited  ( 2013)   eKLRquoted  in  the  case  ofIgnatius  Makau  Mutisya  -vs- Reuben   Musyoki  Muli    stated  that  ‘we  agree  that   the  best  way  to  proof  ownership  would be  to  produce  to  the  court  a  document   from  the  Registrar  of  Motor-vehicle to show  who   the  registered  owner  is,  but  when  the   abstract  is  not  challenged  and  is  produced  in  court  without  any  objection  the  contents  cannot  later  be  denied.”

33. It   would seem in view of this authority that the appellant found solace in the above decision.   However, in the Thuranira  Karauri  -vs- Agnes Mocheche ( 1997) eKLR.  (supra) case,the   Court of Appeal stated that: whereownership is denied   it was incumbent upon  the  plaintiff  to  place  before  the  Judge  a  certificate  of   search  signed  by  the   Registrar  of  Motor-vehicles  showing  the  registered owner  of  the  lorry.

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.

34. In this case the appellant did not produce a search from the Registrar of Motor-vehicle as proof of ownership. He neither produced in evidence an agreement showing that the accident motor vehicle was beneficially owned by the Respondent. Instead, he relied on a Police abstract which production was not challenged by the respondent” but the respondent produced documents showing that as at the time of the material accident the vehicle was beneficially owned by Odhaya Trading Company  as the importer. The question therefore is whether the respondent  can  deny  the  contents   in  the  police  abstract  See  the  case  of Joel   Muga  Opinja  -vs-  East  Africa  Sea food  Limited  ( 2013)  eKLR  ( supra).

35. I find no evidence on record to show that the police abstract was produced with the sole purpose of proving ownership of the accident motor vehicle. It was in my humble view, produced to show that an accident occurred as alleged and that the police were made aware and they carried out investigations. The police did not adduce evidence that the particulars contained in the police abstract were accurate as far as ownership of the accident motor vehicle was concerned

36. In my humble view, the authorities stating that a police abstract is sufficient evidence of ownership of an accident motor vehicle are distinguishable from DW1 testified that the suit motor vehicle did not belong to the respondent but to Odhaya Trading Company. He provided importation documents from the port evidencing this fact. The respondent thus shifted the burden of proof back to the appellant who in my opinion failed to dislodge the said burden.

37. In the case of Z O S & C A O (Suing as the Legal Representatives in the Estate of S A O (Deceased) v Amollo Stephen [2019] eKLR the court expressed itself as follows:

“The Police Abstract form of the material accident was also produced as an exhibit. However, a police abstract is not and cannot be proof of occurrence of an accident but proof of the fact that following an accident, the occurrence thereof was reported to the police who took cognizance of that accident.  It is therefore the police, having received information or a report of occurrence of an accident, would investigate and establish circumstances under which such an accident occurred.The police abstract produced as PEx. 3 dated 21/8/2018 only provides particulars of the reported accident; the owner of the subject motor vehicle involved, the injured person being the deceased, the insurance company and particulars thereof…………That being the case, it was incumbent upon the appellant, at the time of hearing, to either call an eye witness who saw the accident take place to prove any of the listed particulars of negligence attributed to the Respondent, or to call the police from Bondo Police Station, who investigated the accident to shed light on the results of the investigations; and as to who was to blame for the subject accident wherein the deceased lost his life.”

38. In this case, I find that the appellant failed to controvert the testimony of DW1 and to prove that the aforesaid motor vehicle was property of the respondent.

39. The appellant further submitted that the parties consented to withdraw the case against the 2nd defendant, Kennedy Kadayi Lumwaji on the 09. 05. 2012 which signalled that the respondent absolved the 2nd Defendant, the driver of the suit vehicle, from any liability whatsoever and in effect assuming his responsibility for negligence. I have had the opportunity to review the trial court record and it is clear that the appellant withdrew the case against the 2nd defendant on his own motion. There was no record of a consent entered between the appellant and respondent authorising the said action.

40. For the reasons cited above, I find and hold that the appellant failed to prove his case against the respondent on a balance of probabilities and as such his claim against the respondent fails. The appellant can therefore not seek to enforce judgement that he gained in the trial court against the respondent as he never proved that the respondent owned the accident motor vehicle at the material time of the accident. The upshot of all the above is that the appeal herein is found to be devoid of any merit and is hereby dismissed. Each party to bear their own costs of the appeal.

41. File closed.

42. Orders accordingly.

Dated, Signed and Delivered at Siaya this 16th Day of December, 2020

R.E. ABURILI

JUDGE