Zohaib Trading Limited v Chrispine Owino Owegi & 1 other

[2] During the pendency of the suit, the 1 st respondent filed an application dated 9th December 2022 seeking to have the appellant, Zohaib Trading Limited, enjoined to the suit as the 3rd defendant on the ground that it was the owner of the suit motor vehicle. That application was allowed as prayed on 26 th April 2023. [3] Being aggrieved by the ruling and order of the lower court, the appellant filed the instant appeal on 16 th May 2023 on the following grounds: [a] The learned magistrate erred in law by completely disregarding the laid down legal principles to be considered by court before enjoining a party to a suit under Order 1 Rule 10(2) of the Civil Procedure Rules. [b] The learned magistrate erred in law and fact by failing to appreciate the express terms of the sale agreement between the appellant and the 1st defendant (Stephen Odhiambo) dated 31st December 2018. [c] The learned magistrate erred in law and in fact by failing to appreciate what amounts to transfer of property in goods under the Sale of Goods Act. [d] The learned magistrate misdirected himself and erred in law by allowing the plaintiff’s application to join the appellant the lower court suit when it was a mere seller of the motor vehicle and had parted with possession and control thereof on the 31st December, 2018. 2|Page HCCA NO. E029 OF 2023 JUDGMENT

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[e] The learned magistrate erred in law and fact by finding that the appellant had not demonstrated that ownership had passed. [4] In the premises, the appellant prayed that its appeal be allowed and the ruling and orders made by the lower court on 26 th April 2023 be set aside. The appellant also prayed that an order be made dismissing, with costs, the 1 st respondents application dated 9th December 2022 filed in Oyugis PMCC No. 210 of 2021. [5] Directions were given herein on 30th January 2025 that the appeal be canvassed by way of written submissions; and while the appellant complied, the respondents did not. In the appellant’s written submissions dated 4 th March 2025. On the authority of Joseph Njau Kingori v Robert Maina Chege & 5 others [2002] eKLR, the appellant set out the prerequisites for joinder, namely: [a] The party intended to be joined must be a necessary party. [b] He must be a proper party to the suit in question. [c] In the case of a defendant there must be a relief flowing from that defendant to the plaintiff. [d] The ultimate order or decree cannot be enforced without his presence in the matter. 3|Page HCCA NO. E029 OF 2023 JUDGMENT

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[e] His presence is necessary to enable the court to effectively and completely to adjudicate upon and settle all questions involved in the suit. [6] The appellant made reference to its Replying Affidavit filed on the 17th February 2023, a copy of which is contained at page 33 of the Record of Appeal, and submitted that suit vehicle Registration Number, KCS 411X, Toyota Fielder, was sold to Steven Odhiambo Abongo, the 2nd respondent herein vide the sale agreement dated 31st December 2018. The appellant pointed out that the 2nd respondent took possession of the suit vehicle immediately after execution of the agreement and paying the entire purchase price. [7] The appellant drew the attention of the Court to the bundle of documents annexed to its Supporting Affidavit and marked CNS-3 and submitted that pursuant to the sale agreement it initiated and approved the transfer of the suit motor vehicle to the 2nd respondent on the portal of the National Transport and Safety Authority. It conceded however that the 2 nd respondent delayed in completing the transfer process; and that this was the reason it was still recognized as the registered proprietor of the suit motor vehicle as at 11th May, 2021. [8] The appellant further made reference to Clause 8 of the sale agreement, by which the parties covenanted as follows: “THAT upon taking possession of the motor vehicle the buyer shall take out an insurance cover for the same at an insurance company of his/her choice preferably comprehensive and should the motor vehicle be involved in an accident or stolen, it shall be the sole responsibility of the buyer 4|Page HCCA NO. E029 OF 2023 JUDGMENT

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notwithstanding the fact that the motor vehicle has not been formally transferred to his/her name.” [9] In the appellant’s submissions, its depositions before the lower court were never controverted by the respondents; and therefore ought to have been deemed to have been admitted as factual by the lower court. Hence, the appellant posited that the lower court ought to have found it to be an unnecessary party since there is no relief flowing from it to the 1 st respondent in the primary suit. Accordingly, the appellant contended that the learned magistrate erred in fact and law in making a finding that it did not demonstrate that ownership of the motor vehicle had passed, even when receipts proving payment of full purchase price were annexed to its Replying Affidavit. [10] Further to the foregoing, the appellant urged the Court to note that the alleged accident occurred on the 24 th April 2021; almost four years after ownership, possession, management and control of the suit motor vehicle had been transferred to the 2 nd respondent vide the sale agreement dated 31 st December, 2018. In support of its arguments, appellant relied on the following authorities: [a] Nancy Ayumba Ngana v Abdi Ali as cited in P N M, J K M v Telkom Kenya Limited & another for the proposition that there are alternative forms of ownership, such as actual ownership; beneficial ownership; and possessory ownership. The appellant submitted that a person who enjoys any of such other categories of ownership 5|Page HCCA NO. E029 OF 2023 JUDGMENT

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may for practical purposes, be much more relevant to a suit such as the 1st respondents, than any person whose name appears in the certificate of registration. [b] Osumo Apima Nyaundi v Charles Isaboke Onyancha Kibondori & 3 others in which the Court of Appeal interpreted Section 8 of the Traffic Act, Cap 403 of the Laws of Kenya, and held that the ownership of a vehicle passes upon the sale and the delivery of the motor vehicle, and the registration book of the vehicle is only evidence of title. [c] Securicor (K) Ltd v Kyumba Holdings [2005] eKLR in which the Court of Appeal in almost similar set of facts found that although the appellant remained the registered owner of the motor vehicle, actual possession thereof had passed to the third party; and therefore the owner could not have been the appellant. [11] On the probative value of affidavit evidence, the appellant relied on Mutai & others v Attorney General in which the Court of Appeal held: 34" An affidavit is sworn evidence. It occupies a higher pedestal than grounds of opposition that are basically issues of law intended to be argued. Two things flow from this. First, by the mere fact of the affidavits not having been controverted there is an assumption that what was averred in the affidavit as factual evidence is admitted.” [12] On the strength of the foregoing, the appellant urged the Court to allow the appeal and to substitute the order of 26 th April, 6|Page HCCA NO. E029 OF 2023 JUDGMENT

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2023 with an order dismissing with costs the application dated 9 th December 2022. [13] I have given careful consideration to the appeal, and in particular the grounds set out in the Memorandum of Appeal as well as the written submissions filed herein by counsel for the appellant. I am mindful that an appellate court ought not to interfere with the exercise of discretion by the trial court, even if, on the facts, it would have come to a different conclusion. Accordingly, the limited circumstances under which an appellate court can interfere with the exercise of discretion by the trial court were well articulated by Madan, JA (as he then was) in United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd [1985] E.A 898, as follows: “The Court of Appeal will not interfere with a discretionary decision of the judge appealed from simply on the ground that its members, if sitting at first instance, would or might have given different weight to that given by the judge to the various factors in the case. The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account of considerations of which he should have taken account, or fifthly, that his decision, albeit a discretionary one, is plainly wrong.” [14] Moreover, this being an interlocutory appeal, I am mindful that the issues in dispute between the parties are yet to be tried before the lower court; and hence the need for restraint so as to not embarrass the trial court. Precedents abound to support this proposition. For instance, in George Gikubu Mbuthia v Peter 7|Page HCCA NO. E029 OF 2023 JUDGMENT

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Njeru Mugo & 3 others [2015] eKLR, the Court of Appeal held thus in connection with interlocutory appeals: "It is well settled that an appellate court considering an appeal arising from an interlocutory decision of the court below cannot make definitive determinations of either law or fact on the issues pending in the main dispute to avoid embarrassing the trial Court. Indeed, in this instance, the Judges in Civil Appeal No. 111 of 1986 considered only whether Schofield, J’s decision was made within the well-known principles for the grant of an interlocutory injunction enunciated in Giella Vs. Cassman Brown & Co. Ltd [1973] EA 358." [15] The main issue for determination is whether the subordinate court erred in allowing the application for joinder of the appellant in the light of the evidence presented by the appellant before the lower court by way of its Replying Affidavit sworn on 9 th December 2022. The assertions by the 1st respondent was that the averments in that affidavit are yet to be tested by way of crossexamination to determine whether or not ownership had passed to the 2nd respondent by the time of the subject accident as a matter of fact. [16] Indeed, in Shah v Padamshi [1982] eKLR, the Court of Appeal held that: Except in the clearest of cases, which this one was not it is inadvisable for the court to prefer one affidavit to another... A trial must be ordered if a triable issue is found to exist, even if the court strongly feels that the defendant is unlikely to succeed at the trial. The court must not attempt to anticipate that the defendant will not succeed at the trial . [17] In the premises, there is considerable merit in the 1 st respondent’s posturing that the issue of ownership ought to be canvassed at the hearing of the lower court suit. Indeed, the averments set out in the appellant’s Replying Affidavit ought to 8|Page HCCA NO. E029 OF 2023 JUDGMENT

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have simply comprised its defence to enable the subordinate court determine the issue on the basis of tested evidence. [18] The foregoing being my view of the matter, I find no merit in this appeal. The same is hereby dismissed with costs. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8TH DAY OF MAY 2026 …………………………… OLGA SEWE JUDGE 9|Page HCCA NO. E029 OF 2023 JUDGMENT

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