Honda Motorcycle (k) Ltd v Joseph Omondi Opondo (suing as legal administrator of the estate of Dorcas Awuor Odhiambo) & 1 other

contract for and actual sale of the motorcycle in issue, KMFS 414R to the 2nd respondent; 3. That the honourable magistrate erred in law in finding that, whereas there was evidence that the appellant had sold the motorcycle KMFS 414R, it was liable as the motorcycle was still registered in its name; 4. That the honourable magistrate erred in law in finding that, whereas the 2nd Respondent held suitable property in the motorcycle in issue, the appellant was still vicariously liable for the accident; 5. That the honourable magistrate erred in fact and law in finding that, whereas the appellant had sold the motorcycle on 18th June 2021 and resold by its dealer on 9th August 2021 to the 2nd Respondent, 10 months before the accident of 16th May 2022, it was not enough evidence to absolve the Appellant; 6. That the honourable magistrate erred in fact and law in finding the appellant vicariously liable when no evidence was adduced to show that it was the insured or beneficial owner of the motorcycle, or that it was related to the 2nd respondent; 7. That the honourable magistrate erred in fact and law in finding the appellant culpable when there was no autopsy or medical report adduced to prove the cause of death, or the hospitals the deceased was admitted and treated in. 3. Vide the instant appeal the appellant seeks the following orders: 1. That the judgment of the honourable court be reversed, varied or set aside; and 2. That the appellant's costs for their appeal and the costs for the suit in PMCC No. E1556 of 2022 be provided. Page 2 of 15

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4. The 1st respondent filed suit vide the Plaint dated 2nd November 2022, claiming damages for an accident involving motorcycle registration No. KMFS 414R Honda on which the deceased was a pillion passenger. 5. It was pleaded that the deceased was walking along Mombasa – Nairobi Highway on the pedestrian walkway when the Appellant’s motorcycle registration No. KMFS 414R was carelessly ridden and knocked the deceased down, as a result of which she suffered fatal injuries. 6. In their defence dated 3rd February 2023, the appellant denied ownership or possession of the accident motorcycle and averred that ownership had been transferred to the 2nd respondent. 7. The appellant also denied that the 2 nd respondent was its authorized rider or servant. 8. The 2nd respondent neither entered an appearance nor filed a defence, and a default judgment was entered against him. 9. The matter was heard by the Court below by way of viva voce evidence. I shall briefly set out the evidence tendered before the Court below in the succeeding paragraphs of this judgment. 10. PW1 was Mr Joseph Omondi Opondo. Mr Opondo testified that the deceased person was 50 years old at the time of his death and worked in a recycling plant. He averred that he and his siblings depended on the Page 3 of 15

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deceased. It was his evidence that after the accident, the Police detained the 2nd respondent, as he was the driver of the motor vehicle involved in the accident, for having caused the accident. When cross-examined, Mr Opondo testified that he was unaware of the relationship between the 1 st and 2nd Respondents. 11. PW2 was No. 91381 PC Swaleh Anami. He testified on the occurrence of the accident. He stated that the rider was to blame as he lost control of the motorcycle he was riding and ploughed into the deceased, who had been strolling along the left edge of the highway towards the Refinery section. The impact was apparently significant as the deceased was tossed into the air, whereupon she landed on the tarmac and suffered serious head injuries from which she succumbed. He relied on and produced the police abstract and sketch map. 12. DWI was Eric Ngugi. He relied on his witness statement and produced the documents in the appellant’s list of documents. It was his case on cross-examination that at the time of the accident, the motorcycle was still in the appellant's name. 13. The lower court considered the matter and rendered its Judgement as follows: (a)Liability at 100% against the appellant vicariously and the 2 nd respondent principally; (b)Pain and suffering Kes.10,000/-; Page 4 of 15

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(c) Loss of expectation of life Kes.100,000/-; (d)Loss of dependency Kes.542,716/-; (e)Special damages Kes.45,000/-; and Total: Kes.697, 716/-. 14. Being aggrieved by the said judgment, the appellant filed the instant appeal. The appeal was canvassed by way of written submissions. I shall give a précis of the submissions of the parties below. 15. The appellant filed submissions dated 27 th February 2025 and submitted inter alia that registration raised a rebuttable presumption of ownership and urged that the appellant had, by the evidence adduced, rebutted the presumption by proving that the motorcycle had been sold and possession taken by the 2nd Respondent at the time of the accident. 16. Reliance was placed on Section 8 of the Traffic Act, which provides thus:“The person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle.” 17. The appellant also relied inter alia on the case of Securicor K Ltd v Kyumba Holdings CA No. 73 of 2002 and submitted that the appellant proved that it was not the beneficial owner of the insured motorcycle. 18. The respondent also filed submissions dated 12 th March 2025. In the said submissions it was submitted that there was no sale agreement to Page 5 of 15

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support sale to Cernry Bureau Ltd and so ownership had not passed and remained with the appellant. 19. Reliance was placed inter alia on the case of Petrocity Enterprises (U) Ltd v Roselyne Sikudi & 2 Others [2017]eKLR. 20. I was urged to dismiss the Appeal. 21. In my view, the issue for determination by the Court is whether the lower court erred in finding the appellant liable for the accident. 22. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first-hand. 23. This Court has considered the pleadings, evidence, submissions, and authorities relied on by the parties in support and opposition to the appeal. 24. Whereas this court is under a duty to re-evaluate and assess the evidence and make its own conclusions, it must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. In the case of Peters vs Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows:- Page 6 of 15

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“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…” 25. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..." 26. I note that it was common ground of the parties that the accident occurred, and this fact was not disputed. Indeed, the accident occurred through which the deceased lost life; this was the common position of the parties in the trial court and even in this Court. 27. What is disputed is whether the appellant was the beneficial owner of the accident motorcycle, to be held vicariously liable, as did the lower court. Page 7 of 15

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28. The standard of proof in civil cases is a simple one on the preponderance of probabilities or balance of probability. The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru, J in William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLR 526 as follows: “In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.” 29. In Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another (2015) eKLR, the judges of Appeal held that:“Denning J. in Miller v Minister of Pensions (1947) 2 ALL ER 372, discussing the burden of proof, had this to say: “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; the burden is discharged, but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the Page 8 of 15

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burden of proof will loose, because the requisite standard will not have been attained.” 30. In my reevaluation of the pleadings and evidence, I understand the Appellant’s case to challenge liability on the basis that there is no way the Appellant would be liable if they had sold and transferred the accident motorcycle to Cerny Bureau Limited, who thereafter sold it to the 2 nd Respondent. Section 8 the Traffic Act provides thus:“The person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle.” 31. The above provision, in my view, creates a rebuttable presumption in favour of ownership to the person in whose name the motorcycle is registered. Being a rebuttable presumption, it can be displaced by evidence. The Appellant adduced evidence, to wit, tax invoice, delivery note, sale agreement, registration certificate and sale and finance agreements. 32. Relying on Section 19 of the Sale of Goods Act, the lower court found that none of the documents showed that legal title had passed. I do not agree with the learned magistrate for two reasons: first, legal title passes when the transfer is registered. Herein, it is common ground that the property was still registered in the appellant's name. In reckoning section 8 of the Traffic Act and section 19 of the Sale of Goods Act, the Court below should have taken into consideration the intentions of the parties as disclosed by their conduct. In this case, the documents produced by the Page 9 of 15

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appellant appear to show that the parties intended to have the subject motorcycle transferred. It is not in doubt that the 2 nd respondent had in his possession the motorcycle pursuant to the said sale agreement. 33. In the case of Berkley Steward v Waiyaki Vol 1 KAR 1118 {1986 – 1989} it was held that: “Under Section 119 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in relation to the facts of the particular case.” 34. Further to the foregoing, the contention of the counsel for the appellant that the court below did not take into consideration nor distinguish the authorities that were produced before it would appear to me to be merited. The said court ought to have considered the holdings in Honda Motorcycles Ltd v Everlyne Auma Oloo and Securicor Kenya Ltd v Kyumba Holdings (supra). 35. I agree with the submission by the appellant that the lower court erred in its finding that the appellant was vicariously liable. What then, in law, is vicarious liability? The 11th Edition of the Black’s Law Dictionary defines “vicarious liability” as the “liability that a supervisory party (such as employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between Page 10 of 15

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the two parties.” It has to be established that the motorcycle that caused the accident was driven by a person for whose negligence the owner is responsible. The appellant’s case was that it was not the owner of the motorcycle and that the subject motorcycle was not in its control. As regards the issue of vicarious liability, it was held in Kansa vs. Solanki [1969] EA 318 as follows:“Where it is proved that a car has caused damage by negligence, then in the absence of evidence to the contrary, a presumption arises that it was driven by a person for whose negligence the owner is responsible (See Bernard v Sully [1931] 47 TLK 557.) This presumption is made stronger or weaker by the surrounding circumstances, and it is not necessarily disturbed by the evidence that the car was lent 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.” 36. In this case, the 2nd respondent was not riding the motorcycle as a servant or agent of the appellant. The 2 nd respondent was not riding for the benefit of the appellant, nor did he have a task to do for and on behalf of the appellant. 37. Consequently, vicarious liability against the Appellant must fail as there was no nexus to apportion liability. The 2 nd respondent was solely to blame for the accident that occurred during his own frolic. I am fortified by the reasoning of the court in Ngugi v Gitau & 2 others (Civil Appeal 81 of Page 11 of 15

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2018) [2024] KEHC 9977 (KLR) (30 July 2024) (Judgment), where the court stated as follows: … In the present appeal, the 2nd respondent was not driving the vehicle as a servant or agent of the 1st respondent. The 2nd respondent was not driving for the benefit of the 1st respondent, nor did he have a task to do for and on behalf of the first respondent. He was driving the car for his own benefit and interest. In the upshot, vicarious liability against the 1st respondent must fail as there is no nexus to apportion liability. The 2nd respondent is solely to blame for the accident that occurred during his own frolic. 38. The lower court, therefore, erred in finding vicarious liability against the appellant where there did not exist a relationship between the two persons which would make it proper for the law to make the one pay for the fault of the other. 39. Secondly, there was no connection between that relationship and the tortfeasor’s wrongdoing, which would have led to the conclusion that the tort could be said to be committed in the course or within the scope of the tortfeasor’s employment. In the case of P.J Dave Flowers Ltd v David Simiyu Wamalwa (2018) eKLR, it was held that: “The employer is made vicarious liable for the tort of his employees not because the plaintiff is an invitee, nor because of the authority possessed by the servant, but because it was a case in which the employer having put matters into motion Page 12 of 15

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should be liable if the motion that he had originated lead to damages to another. It also held that the burden of proving a claim anchored on torts of negligence or breach of statutory duty of care rested on the claimant throughout the trial on balance of probabilities.” 40. It is thus clear that the 2 nd respondent was not acting on the instructions of the appellant, who did not instruct or permit him to ride the motorcycle at the time the accident occurred. The appellant proved that the 2 nd respondent was no way its employee. In the case of Edward Mungai Waweru v Samson Ochieng Kagunda & another (2017) eKLR, it was held that:“The law would permit the recovery of damages by a person for torts committed by another where the relationship between them and the interest of the one in the conduct of the other was such as to render the situation analogous to that of an employee acting in the course and scope of his or her employment or where in the eye of the law the one was in the position of the owner’s servant.” 41. There was as such no basis for finding vicarious liability. The 2 nd respondent was clearly not under any directions of the appellant and was not the appellant’s servant, employee or agent. 42. Having found that the trial court was wrong in finding liability on the part of the appellant, I do not find it desirable to venture into the arena of the Page 13 of 15

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quantum of damages. I let this issue rest also because there was no appeal on it. 43. I have said enough to show that this appeal is merited. I find no utility delving into the issue of whether the lower court correctly established the cause of death, as urged by the appellant. 44. The upshot of the foregoing, I make the following orders: (a)The Appeal is merited and is hereby allowed; (b)Judgement of the lower court as against the appellant is set aside and substituted with an Order dismissing the suit against the appellant; (c) For the avoidance of doubt, the judgement of the lower court against the 2nd respondent stands with the effect that the 2 nd respondent is 100% liable for the accident; (d)The appellant shall have the costs of this appeal and in the court below; and (e)File closed. 45. Orders accordingly. Dated and signed at Mombasa, the 7th day of July 2025. Delivered virtually through Microsoft TEAMS. Gregory Mutai JUDGE In the presence of:Page 14 of 15

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Mr Ndolo, for the Appellant; Mr Ngure, for the 1st Respondent; No appearance for the 2nd Respondent; and Arthur - Court Assistant. Page 15 of 15

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