Phaustine Wanyonyi v Arise & Shine Sacco

4. The appellant, being dissatisfied with the finding of the trial court, has preferred this appeal on the following grounds: 1. That the learned trial magistrate erred in law and fact in holding that the appellant had not proved his case against the respondent in a balance of probability. 2. That the learned trial magistrate erred in law and fact in holding that the appellant had not proved on a balance of probability that motor vehicle registration number KCB 708V belongs to the respondent. 3. That the learned trial magistrate, after holding the respondent’s agent and/or servant 100% liable for the accident, erred in law and fact in holding that the respondent is not vicariously liable. 4. That the learned trial magistrate erred in law and fact in holding that the only means to prove ownership of a motor vehicle is by production of the motor vehicle search. 5. That the learned trial magistrate erred in law and fact in dismissing the production of a police abstract as proof of ownership of the motor vehicle search. 6. That the learned trial magistrate erred in law and fact in holding that oral evidence displaced the documentary evidence produced by the appellant on ownership of the motor vehicle registration number KCB 708V. 7. That the learned trial magistrate erred in law and fact and failed to consider evidence placed before her on ownership of the motor vehicle registration number KCB 708V. 8. That the learned trial magistrate, after considering the facts and evidence before her, arrived at a wrong decision, hence a miscarriage of justice. 5. The appellant seeks that the decision of the learned trial magistrate dismissing the appellant’s case be set aside and the court confirm the alternative award on damages by the trial court. 6. The appellant, in his submissions, argues that in the absence of any evidence to counter the police abstract, it is enough proof of ownership. (See Samuel Mukunya Kamunge v John Mwangi Kamuru [2005] eKLR; Jonathan Mugalo v Telkom ‘K’ Ltd Kisumu HCC No 166 of 2021). In Asisa Chitechi Oketch (Suing as the administrator and personal representative of the estate of Rashi Issa Malala v Scarce Commodities Ltd & Another Kakamega HCA No 85 of 2015, Judgment on 4/2/2022, the court held that the proper way to impeach the contents of the police abstract by the respondent should have been for them to provide proof, by way of a certificate of official search that they did not own the vehicle. 7. The appellant urged the court to affirm the damages awarded by the trial court. 8. The respondent in their submissions argues that the appellant disclosed that Abraham Nyongesa Wakhungu drove the vehicle, and he ought to have been enjoined as a party. They concurred with the trial court’s finding on the issue of ownership. Analysis and Determination 9. As the first appellate court, I have a duty to re-evaluate the evidence, consider arguments by parties, and make my own determination of the issues in controversy. However, I take into account that neither saw nor heard the witnesses’ testimonies. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18472/eng@2025-11-10 2

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10. Phaustine Wanyonyi (Pw1) testified that he was walking along Kimilili Misikhu road when the respondent’s vehicle came behind him and he moved to the extreme left, but the vehicle drove to where he was and knocked him. He sustained the injuries outlined in the plaint. 11. Bramwel Wanyonyi (Pw2) testified that the investigating officer in the case, Walter Ndegwa, was transferred to Lumakanda Police Station. The driver of the motor vehicle was charged with the offence of careless driving. He produced the police abstract. Elias Adoka Ondangi (Pw3), the clinician at Bungoma County Referral, testified that the appellant was admitted to the hospital on 21/3/2018. He sustained fractures of the tibia and fibula bones of the lower limbs, meaning both lower limbs. He was treated and discharged on 4/4/2018. According to his invoice, he spent Kshs 30,670/- at the hospital. 12. Antony Soita Wanyonyi (Dw3) testified that he is the manager at the respondent. He testified that they knew of the accident when they were served with court documents. They have never engaged Monarch Insurance and have never had Abraham Nyongesa Wakhungu as an employee.He testified that their vehicles do not use the Kimilili Misikhu routes and that they were never called by the police in relation to any traffic accident. He denied ownership of the vehicle. 13. The only issue raised in the appeal is whether the appellant proved that the respondent owned the motor vehicle. The appellant produced the police abstract, which indicated that the respondent was the owner. It is agreed that a certificate of official search was not produced. The respondent, through Dw1, denied ownership of the motor vehicle. 14. The trial magistrate held that the evidence by the appellant on ownership, the police abstract, was challenged by the respondent’s pleadings and the testimony of Dw1. 15. A police abstract is adequate proof of motor vehicle ownership in the absence of any evidence to the contrary. In Samuel Mukunya Kamunge vs. John Mwangi Kamuru Nyeri HCCA No. 34 of 2002, the court expressed itself as follows: “ A police abstract is sufficient proof of ownership of a motor vehicle if not controverted. Though a certificate of search from the registrar of motor vehicle would show who was the registered owner of motor vehicle according to the records held by the registrar of motor vehicle, that however is not conclusive proof of actual ownership of the motor vehicle as section 8 of the Traffic Act provides that the contrary can be proved as vehicles often times change hands but the records are not amended.” 16. In this case, the respondent did not provide any documentary evidence showing that the vehicle did not belong to the appellant. The appellant, through the police abstract, proved that the vehicle belonged to the respondent. Therefore, for the respondent to persuade the court that it did not own the vehicle, it was incumbent upon it to produce documentary evidence to the contrary. 17. Pw1 testified as to the occurrence of the accident, that the respondent vehicle veered off the road and knocked him. Therefore, I agree with the trial magistrate's observation that the respondent was 100% liable for the accident. 18. The respondent proved that he sustained the following injuries: a fracture of the left lower leg, a dislocated right ankle joint, bruises on the back and blunt injuries to the chest. The trial court held that she would have awarded Kshs 1,100,000/- as general damages. The trial magistrate relied on the case of Francis Ndungu Wambui & 2 Others v VK (Minor suing through next friend and mother WCWK (2019) eKLR, where the injuries sustained were a compound fracture of the distal tibia and fibula shaft, loss of consciousness and other soft tissue injuries. However, a compound fracture is more serious compared to a simple fracture. In Atunga v Mogambi [2022] KEHC 9854 (KLR), the respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18472/eng@2025-11-10 3

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sustained soft tissue injuries, fracture of the right tibia and fibula as well as dislocation of the right wrist and hip joint, and the High Court upheld the trial court award of Kshs. 550,000 as general damages. In the case of Hussein Sambur Hussein v Shariff A. Abdulla Hussein & 2 others [2022] eKLR the court upon considering injuries like fractures of the right tibia and fibula leg bones (lower 1/3 bimalleolar ankle fracture), dislocation of the right ankle, bruise on the right leg and pain in the injured areas, with a permanent incapacity of 18%, awarded the sum of Kshs.600,000/= on appeal. Therefore, an award of Kshs 600,000/- is sufficient in the circumstances. 19. The appellant proved that he incurred Kshs 30,670 at Bungoma County Referral Hospital and Kshs 3,000/- for the medical report. I therefore award special damages of Kshs 33,670/-. 20. In the end, I find merit in the appeal and set aside the judgment of the subordinate court. The respondent is hereby held 100% liable for the accident, and I award damages as follows: 1. General Damages Kshs 600,000 2. Special Damages Kshs 33,670/Total Kshs 633,670 21. The appellant shall have the costs of this appeal. DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 10TH DAY OF NOVEMBER 2025 R.E. OUGO JUDGE In the presence of: Mr. Onkangi -For the Appellant Mr. Olonyi h/b Mr. Sichangi - For the Respondent Wilkister - C/A https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18472/eng@2025-11-10 4

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