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Court of AppealDismissedCivil Appeal 43 of 2006· [2012] KECA 42 (KLR)

NELSON YABESH BICHANGA V MARY B. OMARI & ANOTHER [2012] KECA 42 (KLR)

Court of Appeal of Kenya
28 November 2012
4,775 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that if you sell a car but don't transfer the registration, you remain legally liable if it causes an accident.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Onyango Otieno, Visram and Nambuye, JJ.A) dismissed this first appeal against a High Court judgment (Warsame, J.) which found the appellant solely liable for a fatal road traffic accident on 1st April 2000 on the Keroka-Kisii road, in which Meshack Omari Mogire, a fare-paying passenger, died. The respondents, the widow and father of the deceased, sued as joint administrators of his estate and recovered Kshs.1,340,000/- comprising loss of dependency, loss of expectation of life, pain and suffering and special damages. The core issue was whether the appellant, the registered owner of motor vehicle KAH 891C, remained its owner at the date of the accident notwithstanding his claim that he had sold it to Kisii Broadways Limited in February 2000. Applying Section 8 of the Traffic Act, the Court held the registered owner is deemed the owner unless the contrary is proved, and the appellant failed to discharge that burden: he conceded he never informed the Registrar of the alleged sale within seven days as required by Section 9(2), no prescribed transfer form or sale agreement existed, and the vehicle remained registered in his name over a month after the alleged sale. The Court also upheld the 15-year multiplier, holding the Government retirement age of 55 is not the benchmark for self-employed persons, and endorsed proof of funeral expenses by oral evidence where receipts are unobtainable due to cultural commitments. The appeal was dismissed with costs to the first respondent.

Key legal issues

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01

Ownership of the motor vehicle at the date of the accident

Holding

The appellant remained the owner of the vehicle on 1st April 2000; the presumption of ownership from registration was not rebutted

Reasoning

Section 8 of the Traffic Act deems the registered owner to be the owner unless the contrary is proved. The appellant conceded he never informed the Registrar of the alleged sale within seven days, no prescribed form existed, and the vehicle remained registered in his name over a month after the alleged sale. The Sale of Goods Act s.20(a) required proof of a valid contract passing property, but no sale agreement existed. The only defence witness was found not candid. The burden on the appellant was therefore not discharged.

p. 5
02

Compliance with Sections 9(1) and 9(2) of the Traffic Act

Holding

The statutory transfer procedure was not complied with, so the alleged sale could not defeat the registered owner's liability

Reasoning

Section 9(2) requires the registered owner to inform the Registrar within seven days of transfer, and Section 9(1) prohibits use of a transferred vehicle on a road for more than fourteen days unless the new owner is registered. The appellant conceded no notification was given and no form exists in the record. Even taking 18th February 2000 as the transfer date, the vehicle was on the road over a month later without the new owner being registered, rendering the trial judge's finding of non-compliance correct.

p. 6
03

Appropriateness of the 15-year multiplier

Holding

The multiplier was proper; the Government retirement age of 55 is not the benchmark for self-employed persons

Reasoning

The deceased was 44 years old and an active businessman. The court held that the retirement age of 55 applied to Government employees and even private sector retirement was generally 60. Counsel for the appellant cited no authority making the Government retirement age the benchmark, and the court knew of none. The trial judge had considered all aspects and arrived at an inevitable conclusion, so the award of general damages would not be disturbed.

p. 7
04

Proof of special damages without documentary evidence

Holding

Funeral expenses may be proved by proper oral evidence where receipts are unavailable due to cultural commitments; not all special damages require documentary proof

Reasoning

The trial judge allowed reduced funeral expenses of Kshs.15,000/- despite the absence of receipts, reasoning such expenses exist but cannot always be proved documentary. The Court agreed, subject to the restriction that proper oral evidence detailing such expenses must be given. The award of Kshs.5,000/- for coffin expenses against a Kshs.10,000/- claim with a receipt was allowed to stand as there was no cross-appeal.

p. 7
05

Evidence that the appellant and his wife were directors of the second respondent

Holding

The trial judge was entitled to comment on counsel's submissions revealing the directorship, as it bore on the credibility of the defence witness and the alleged sale

Reasoning

The defence witness denied the appellant was a director but refused to disclose who the directors were. The second respondent's own counsel then stated in submissions that the directors were the first defendant and his wife. The court found the judge entitled to consider this, as it bore on the witness's credibility and on whether the vehicle was genuinely sold or merely transferred to the appellant's own company. The court went no further on the point but found it telling.

p. 6

Legal principles established

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  • The person in whose name a vehicle is registered is deemed the owner unless the contrary is proved under Section 8 of the Traffic Act; a registered owner who alleges a sale must prove that ownership actually passed through a valid contract and statutory compliance
  • Non-compliance with Section 9(1) and 9(2) of the Traffic Act, requiring notification to the Registrar within seven days and registration of the new owner, means purported ownership has not passed and the registered owner remains liable
  • Special damages such as funeral expenses may be proved by proper oral evidence where receipts are unobtainable due to cultural commitments

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal are awarded to the first respondent
  3. 3.The judgment of the High Court finding the appellant solely liable and awarding Kshs. 1,340,000/- plus costs and interest is upheld

Authorities

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Legislation

  • Traffic ActSection 8
  • Traffic ActSection 9(1)
  • Traffic ActSection 9(2)
  • Sale of Goods ActSection 20(a)
  • Insurance ActSection 4(1)
  • Law Reform Actnull

Cases cited (2)

  • Osapire vs. Kaddy
    (2000) EALA 187
  • Francis Nzioka Ngao vs. Silas Thiauri Nkunga
    Civil Appeal No. 92 of 1998
On appeal from
High Court of Kenya at Kisumu
H.C.C.S. No. 122 of 2002
Jurisdiction invoked
First appeal under the Court of Appeal's appellate jurisdiction from the High Court's decision in a civil suit (Civil Appeal 43 of 2006)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "NELSON YABESH BICHANGA V MARY B. OMARI & ANOTHER [2012] KECA 42 (KLR)", Case Analysis (2012). Civil Appeal 43 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/42/eng@2012-11-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.