Case ID:165563

Captain Motorcycle Manufacturing Co Ltd v James Maxwell Okiri Mochache & another [2020] eKLR

Case Metadata

Case Number:

Civil Appeal 402 of 2018

Parties:

Captain Motorcycle Manufacturing Co Ltd v James Maxwell Okiri Mochache & Benard Omoi

Date Delivered:

15 Oct 2020

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Judgment

Judge(s):

Amraphael Mbogholi-Msagha

Citation:

Captain Motorcycle Manufacturing Co Ltd v James Maxwell Okiri Mochache & another [2020] eKLR

Case History:

(Being an appeal from the Judgment of the Hon. Mr. D.O. Mbeja (S.R.M) in the chief magistrate’s court at Milimani Commercial Court in C.M.C.C No. 2232 of 2014 delivered on the 8th September, 2017)

Court Division:

Civil

County:

Nairobi

History Docket No:

C.M.C.C No. 2232 of 2014

History Magistrate:

Hon. Mr. D.O. Mbeja (S.R.M)

History County:

Nairobi

Case Outcome:

Application allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. 402 OF 2018

CAPTAIN MOTORCYCLE MANUFACTURING CO. LTD.....................APPELLANT

VERSUS

JAMES MAXWELL OKIRI MOCHACHE .....................................1

ST

RESPONDENT

BENARD OMOI .....................................................................................2

ND

RESPONENT

(Being an appeal from the Judgment of the Hon. Mr. D.O. Mbeja (S.R.M) in the chief magistrate’s court

at Milimani Commercial Court in C.M.C.C No. 2232 of 2014 delivered on the 8

th

September, 2017)

JUDGMENT

This appeal arises from the judgment of the lower court delivered on 8

th

September, 2017. The 1

st

respondent was said to have been injured after he was knocked down by a motor cycle registration No. KMDC 392X which was being ridden by the 2

nd

respondent. The 2

nd

respondent though served did not enter any appearance or file any defence. An interlocutory judgment was then entered against the 2

nd

respondent and the suit proceeded for hearing.

At the close of the 1

st

respondent’s case, counsel for the appellant informed the court that he had one witness. A sale agreement dated 23

rd

August, 2013 was admitted as defence exhibit 1 by consent and the defence case closed. Submissions were then filed followed by the judgment now challenged in this appeal.

The thrust of this appeal is that the motor cycle had been sold to a 3

rd

party who was then vested with all legal responsibility for acts of negligence committed after the sale. The lower court was therefore wrong to hold the appellant liable for acts of the 2

nd

respondent.

Both parties have filed submissions in the argument of the appeal. It is my duty as the first appellate court to consider the evidence adduced before the trial court so as to arrive at independent conclusions.

There is no dispute that the records held by the registrar of motor vehicles indicated the appellant was the owner of the subject motor cycle. Defence exhibit 1 is a motor cycle sale agreement between the appellant and one Benard Michika Mose. It is dated 23

rd

August, 2013. The motor cycle sold to the buyer is the one cited in the pleadings as registration No. KMDC 392X. It is said the appellant is a manufacturer of motor cycles. This document was admitted in evidence by consent. Prima facie therefore, the 1

st

respondent in this appeal conceded the appellant had sold the motor cycle to the party named therein. In his judgment, the trial magistrate referred Section 8 of the traffic Act which states as follows,

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

.”

The lower court placed emphasis on the fact that the original sale agreement was not produced and that the copy of records dated 27

th

February, 2014 indicated the motor cycle was owned by the appellant herein. The 1

st

respondent did not object to the production of the copy of the sale agreement. In any case, chances are that the original agreement was in the possession of the 2

nd

respondent who had purchased the motor cycle from the appellant.

It is important to note that the provisions of Section 8 of the Traffic Act are not absolute in that, if the person in whose name the motor vehicle is registered were to provide evidence, to prove otherwise, then that registration is dislodged. Proof is on a balance of probability. So, in effect, ownership is qualified. The appellant in this case produced evidence in the form of a copy of the sale agreement to prove that it had sold was the owner of the motor cycle. That alone was enough to tilt the scales in its favour. -

see Muhambi Koja vs. Saidi Mbwana Abdi (2015) e KLR.

The 2

nd

respondent on the other hand was supposed to change the ownership of the motor cycle after 14 days from the date of purchase -

see Section 9 of the Traffic Act

. His failure to do so cannot be blamed on the appellant.

In view of the foregoing, there was no relationship that was established by way of evidence between the appellant and the 2

nd

respondent to justify vicarious liability on the part of the appellant. It must be remembered under Section 107 of the Evidence Act, Cap 80 laws of Kenya, that the 1

st

respondent had a duty to persuade the court on all fronts stated in his pleadings.

The production of the sale agreement by the appellant which formed its defence was sufficient to dislodge the 1

st

respondence case. He could only blame the 2

nd

respondent who did not appear or file any defence. I have come to the conclusion that there is merit in this appeal which is hereby allowed but each party shall bear their own costs.

Dated and delivered at Nairobi this 15

th

day of October, 2020.

A.MBOGHOLI MSAGHA

JUDGE