Nyeri Motor Services Ltd v Mbevo Kamuti & 1 other

3. 3. The learned magistrate erred in law by failing to consider material evidence contained in the police Abstract. 4. That the learned magistrate ignored the evidence tendered by the appellant. The appellant prays that the Judgment against him be set aside. That the respondent be ordered to pay costs. The appeal was canvassed by way of written submission. The appellant’s Submissions 4. It is the appellant’s submission that the trial magistrate failed to consider the admission by the 2nd respondent as to the ownership of the subject motor vehicle which was involved in the accident. That all the material time of the accident, the vehicle had changed hands and no liability could have attached on him. It is also the respondent’s contention that the learned trial magistrate failed to consider material evidence in the Police Abstract and the evidence tendered by the appellant. The appellant submits that the Judgment entered against him ought to be set aside. 5. The appellant prays the court to consider whether the 2nd respondent had conceded on the issue of liability and exonerated him. 1St Responents Case 6. It is submitted that the respondent had sued the appellant and he 2nd respondent. That the appellant did not adduce any evidence to controvert the evidence tendered by the plaintiff as to the ownership of the said motor vehicle. That no evidence was tendered to prove that the appellant was merely a financer. He avers that there was no basis on the findings on liability. 7. On failure to consider the admission it is submitted that Judgment had been entered against the 2nd respondent on 3/2/2024 and the 2nd respondent’s statement of defence was never admitted on record because the interlocutory Judgment entered against the 2nd respondent was never set aside. That the appellant did not deny that he was the registered owner of the said vehicle and that Section 8 of the Traffic Act provides that: “ The person in whose name the vehicle is registered shall unless the contrary is proved be deemed be the owner of the vehicle.” That Section 9 thereof requires that the transfer of ownership be effected within 14 days. He relies on the case of Mate v Wang’ombe (Civil Appeal 292/2003) 2024 KEHC 10190 (KLR) 5 July 2024 Judgment. 8. On failure to consider appellants evidence it is submitted that the appellant never tendered any evidence apart from skeleton statement. That he appellant was the author of his own predicament as he did not adduce any evidence. That equity does not aid the indolent. Analysis and Determination 9. I have considered the memorandum of appeal the submissions and the proceedings before the subordinate court. The issues that arise from determination are: 1. Whether the 2nd respondent admitted liability by admitting to having purchased motor vehicle with registration KAS 003D from the appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4397/eng@2026-01-19 2

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2. 10. Whether the learned magistrate erred in law by failing to take into account the admission by the 2nd respondent in its pleadings and examination in chief and exonerate the appellant. I will address the issues together. Whether the 2nd respondent admitted liability by admitting to have purchased the motor vehicle The 2nd respondent in his defence filed a memorandum of appearance and a statement of defence on 18/10/2014. He admitted the registration status of motor vehicle registration number KAS 003D Mitsubishi Lorry and averred that he had fully purchased the motor vehicle from the second defendant (appellant) and had assumed ownership and even at the time of the accident the 2nd respondent had sold it to a third party known as John Kihungu Githunguri of P O box 7167, Kiambu, Cell phone No. 0722337787 on 17/3/2012. 11. That the said 3rd party had assumed ownership. He contends that the 3rd party had assumed beneficial ownership of the motor vehicle and was in full control of the subject motor vehicle to the exclusion of the first defendant. Interlocutory Judgment was entered against the 1st defendant as per the record. As per the record the defendant entered appearance and filed a defence then participated in the proceedings. The Judgment by the learned Magistrate on liability was that the defendants were held to be 100% liable for causing the accident. 12. It is clear from the above analysis that the 2nd respondent admitted that he had bought the vehicle from the appellant and had taken possession of it from the appellant. This was an admission by the 2nd respondent as defined under Section 18 of the Evidence Act (Cap 80 Laws of Kenya) which provides as follows: 13. “ (1) Statements made by a party to the proceeding, or by and agent to any such party whom the court regards in the circumstances of the case as expressly or impliedly authorized by him to make them, are admissions. (2) Statements made by parties to suits, sued or suing in a representative character, are not admissions unless they were made while the party making them held that character. (3) Statements made by – (a) persons who have proprietary or peculiarly interest in the subject matter of the proceeding and who made the statement in the character of persons so interested, or (b) persons from whom the parties to a suit have derived their interest in the subject matter of the suit are admissions if they are made during the continuance of interest of the person making the statements.” Thus, admissions can be oral or documentary. Statements of facts which are relevant which when taken together lead to an inference that the fact in dispute is correct. In civil proceedings where there are admissions by a party the adverse party can apply for judgment on undisputed facts even before the full trial is concluded. Admissions are statements of facts made by a party in their pleadings or at any other stage of proceedings. The effect of admissions is that the court may issue a judgment or order based solely on these admitted facts without having to determine them on merits. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4397/eng@2026-01-19 3

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14. The question is whether the 2nd respondent averments in his pleadings amounted to an admission. The principle applicable on admissions is that it must be very clear and unequivocal on a plain perusal of the admission courts have held that where there is an admission, there is no point for a party to go for full trial. See 747 Freighter Conversion LLC v One Jet One Airs Kenya Ltd & 3 Others HCCC 445 of 2012 1B Havelock stated that there is no point of letting a matter go for trial for there is nothing to be gained in the trial. In Botamic Kenya Ltd v Ensign Food(K) Ltd 99/2012 the Judge stated that: “ admissions have to be plain and obvious, as plain as pikestaff and clearly readable because they may result in Judgment being entered. They must be obvious on the take of them without requiring a magnifying glass to ascertain their meaning.” 15. The pleadings by the 2nd respondent are clear and unambiguous and they meet a threshold of what constitutes an admission. Simply stated, the 2nd respondent admitted in his pleadings that there was no liability on the appellant who had parted with the ownership of the motor vehicle and was therefore not in any way the beneficial or legal owner. The statement in the 2nd respondent’s defence was an admission in no uncertain terms. He effectively and on his own motion absolved the appellant from any liability that arises out of ownership. The learned magistrate in his judgment observed that the 2nd respondent had testified to the effect that he had bought the said motor vehicle. The 2nd respondent had annexed a document stating that the appellant was not party to ownership and that he forgot to transfer from joint names. a. The 2nd respondent admitted that the appellant was not the owner. No liability could attach on the appellant even though the vehicle was registered in joint names. The court of Appeal in Securicor Kenya Limited v Kyumba Holdings ltd (2005) KLR while interpreting Section 8 of the Traffic Act stated as follows: “ …it was apparent therefore that though the appellant remained the registered owner of the motor vehicle, its actual possession had passed to a 3rd party. In view of this finings, the trial Judge cannot be right under Section 8 of the Traffic Act when he states that the true owner of the vehicle is the appellant. The section reads as: The person whose name is registered shall, unless the contrary is proved be deemed the owner of the vehicle.” 16. In these proceedings the contrary was proved by the fact of admission by the 2nd respondent that the appellant had sold the vehicle to him. The facts were laid bare before the learned magistrate by the admission of the 2nd respondent that he had bought the vehicle form the appellant. The learned magistrate erred by holding the appellant liable when the contrary was proved right before his eyes. There was no liability on the appellant as the contrary was proved that he was not the owner who was in control and in charge of the said motor vehicle. 17. The 1st respondent submission that the appellant was liable cannot hold. See the decision of the court of Appeal in Securicor Kenya Limited v Kyumba Holdings Limited (supra). The veil of registration of the motor vehicle was lifted and the 2nd defendant readily admitted that the appellant was not the owner. The contrary was proved as stated in the case and no liability could attach on the appellant based on being registered as co-owner of the said vehicle. The 2nd respondent annexed documents to show that the appellant had sold the vehicle and the appellant was a financier. See list of 1st defendants’ documents from page 27 and appellant’s documents at page9. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4397/eng@2026-01-19 4

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18. The appellant had parted with ownership and possession. He was not in control of the said vehicle at time of accident. There was no basis of finding liability on the appellant. The law recognizes a beneficial and a legal owner of an asset. The legal owner is the person that holds the legal title of that asset. 19. On the other hand, the beneficial owner is the person with the right to enjoy or to benefit from the property. The case of Osapil v Kaddy (2000) EA LA 187 the Court of Appeal of Uganda held that a registration card or log book was only prima facie evidence of title to a motor vehicle and the person whose name the vehicle was registered was presumed to be the owner thereof unless proved otherwise. The appellant had in deed proved otherwise. 20. The decision by the learned magistrate cannot be supported. He faulted the appellant for not joining the 3rd party and yet the appellant was not privy to that sale between 2nd respondent and the 3rd party. Order 1 rule 9 of the Civil Procedure Rules provides: “ No suit shall be defeated by reason of the misjoinder or none-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.” 21. The learned magistrate erred by finding liability on the appellant purely on the ground that there was a none joinder of the person to whom the vehicle was sold as it is trite law that a none joinder or joinder of a necessary party does not defeat a suit. The learned magistrate had no reason to find liability on the appellant either on evidence presented before him or based on the law. 22. The interlocutory Judgment was entered against the 2nd respondent. It was not on a liquidate claim. The 1st respondent had the burden to prove liability on the appellant. The burden was not discharged in view of the admission by the 2nd respondent. For these reasons I find that the appeal has merits. Disposition 1. I find that the appeal has merits and I allow it. I order that the Judgment on liability by the learned magistrate as relates to the appellant is set aside. 2. Costs of 50% to the appellant as the appeal was on one aspect of the Judgment. DATED, SIGNED AND DELIVERED AT KITUI THIS 19TH DAY OF JANUARY, 2026. HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4397/eng@2026-01-19 5

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