1.This appeal emanates from the judgment delivered on 6th March, 2018 in Nairobi CMCC No. 1408 of 2009. The suit in the lower court was commenced by way of the plaint dated 20th February, 2009 and amended on 27th May, 2013, and was filed by Ben Namwamba, the plaintiff in the lower court (hereafter the Appellant) against Augustus Kimondo and Derick Kimathi, the defendants in the lower court (hereafter the 1st and 2nd Respondent/Respondents respectively).
2.The claim was for special damages in respect of a road traffic accident which occurred on or about the 22nd day of July, 2007. It was averred that the 1st Respondent so negligently drove, managed, handled and/or controlled the motor vehicle registration number KAE 549N (hereafter the 2nd motor vehicle) belonging to the 2nd Respondent, that he caused and/or allowed it to collide with the Appellant’s motor vehicle registration number KAT 614C (hereafter the 1st motor vehicle). It was further averred that as result of the said collision the first motor vehicle suffered extensive damage, occasioning the Appellant loss and damage.
3.The Respondents jointly filed the statement of defence dated 7th April, 2009 and amended on 1st February, 2016 denying the key averments in the plaint and liability. Alternatively, the Respondents pleaded contributory negligence against the driver of the Appellant’s motor vehicle. The suit proceeded to full hearing with the Appellant calling three (3) witnesses. The Respondents did not call any evidence. Upon the close of the trial court judgment was delivered on 6th March, 2018 dismissing the Appellant’s suit with costs.
4.Aggrieved with the dismissal order, the Appellant preferred this appeal which is based on the following grounds:
5.The appeal was canvassed by way of written submissions. Counsel for the Appellant commenced his submissions by asserting that the trial court fell into error in its finding that no evidence was tendered to show that the second motor vehicle was involved in the material accident despite evidence by the Appellant indicating that the second motor vehicle collided with the first motor vehicle. Counsel further faulted the trial court’s finding that the second motor vehicle was registered in the name of one Ngigi Joseph and not the 2nd Respondent, contrary to evidence tendered.
6.Counsel cited the proviso of Section 107(1) of the Evidence Act and the case of Yumen Ali Shamil v Kahunda Ndune Ndago & 2 others  eKLR to argue that a log book is prima facie evidence of ownership. Reiterating the Appellant’s evidence at the trial, counsel asserted that in the absence of any evidence by the Respondents, the Appellant’s evidence stood uncontroverted. He relied on several decisions including Trust Bank Limited v Paramount Universal Bank Limited & 2 others  eKLR and Karuru Munyororo v Joseph Ndumia Murage eKLR.
7.Counsel further contended that the trial court ought to have found the 2nd Respondent vicariously liable by virtue of his ownership of the second motor vehicle which was at all material times being driven by the 1st Respondent. On that point, he cited the Court of Appeal decision in Tabitha Nduhi Kinyua v Francis Mutua Mbuvi & another . It was the further submission by the Appellant’s counsel that in the absence of any evidence to prove otherwise, or to support the defence of contributory negligence, the Respondents ought to have been held wholly liable for the accident. Therefore, counsel urged the court to set aside the dismissal order by the trial court and to substitute therefor a finding of liability against the Respondents, and to award the Appellant the sum of Kshs.667,000/- being proven special damages arising out of the material damage claim. He relied on the case of Nkuene Dairy Farmers Co-op Society Ltd & another v Ngacha Ndeiya  eKLR.
8.The Respondents naturally defended the trial court’s dismissal order. Counsel for the Respondents anchored his submissions on the decisions in Thuranira Karauri v Agnes Ncheche  eKLR and Yumen Ali Shamil v Kahunda Ndune Ndago & 2 others  eKLR on the question of proof of ownership of a motor vehicle. Counsel asserted that the trial court was correct in finding that the averment in respect of ownership of the second motor by the 2nd Respondent had not been proved as the official motor vehicle record tendered disclosed a different person as its registered owner. Counsel further asserted that no evidence was tendered by the Appellant to prove that the second motor vehicle was involved in the material accident.
9.Counsel asserted that the Respondents did not deem it necessary to call any evidence to rebut the evidence tendered by the Appellant as it lacked credibility and that in any event, counsel for the Respondent ably cross-examined the witnesses who testified in support of the Appellant’s case. Counsel therefore submitted that the appeal lacks merit and ought to be dismissed with costs.
10.The court has considered the record of appeal, the pleadings and original record of the proceedings as well as the submissions by the respective parties. This is a first appeal. The Court of Appeal for East Africa set out the duty of the first appellate court in Selle v Associated Motor Boat Co.  EA 123 in the following terms:
11.An appellate court will not ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or it is demonstrated that the court below acted on wrong principles in arriving at the finding it did. See Ephantus Mwangi & Another vs Duncan Mwangi Wambugu [1982 – 1988] IKAR 278.
12.Upon review of the memorandum of appeal and submissions by the respective parties before this court it is evident that the appeal is essentially challenging the decision by the trial court to dismiss the Appellant’s suit on the issue of liability. In Wareham t/a A.F. Wareham & 2 Others v Kenya Post Office Savings Bank  2 KLR 91, the Court of Appeal stated in this regard that:
13.The Appellant by his amended plaint averred at paragraphs 3, 4, 5, 6, 7 and 8 that:7. The 1st Defendant after the accident was subsequently arraigned in Machakos Law Courts for traffic charges on 14.8.2007 in Traffic Case no. 3112 of 2007 arising from the said accident before Senior Principal Magistrate M.N. Gicheru where he pleaded guilty of having been careless and was fined Kshs. 5,000/-. The Plaintiff therefore avers the 1st Defendant was the sole author of the said accident.8. The 1st Defendant was subsequently arraigned in Machakos Court and fined for the traffic offence.” (sic)
14.The Respondents filed an amended statement of defence denying the key averments in the plaint by stating at paragraphs 4, 5 and 6 that:i.Driving too fast in the circumstances.ii.Failing to keep a proper lookout or to have sufficient regard to the presence of motor vehicle KAE 549N on the road.iii.Failing to heed or observe the presence of motor vehicle KAE 549N on the road.iv.Failing to stop, to slow down or to swerve or in any other way manage or control his motor vehicle so as to avoid the collision.v.Driving without due care and attention.6. The defendants deny that after the accident, the first defendant was arraigned at Machakos Law Courts in Traffic Case Number 3112 of 200 where he pleaded guilty to the offence of careless driving and was fined Kshs. 5,000/- and the plaintiff is put to strict proof thereof.” (sic)
15.To succeed, the Appellant had the onus to prove the particulars of negligence pleaded in his plaint. The trial court after restating and analyzing the evidence concluded as follows in respect to the Appellant’s suit:
16.The applicable law as to the burden of proof is set out under Sections 107, 108 and 109 of the Evidence Act. The Court of Appeal in Mumbi M'Nabea v David M.Wachira  eKLR while discussing the standard of proof in civil liability claims in our jurisdiction had this to say:
17.The latter statement alludes to the position that the legal burden of proof, unlike the evidentiary burden of proof, does not shift. In reiterating the standard of proof, the Court of Appeal in Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another  eKLR held that:
18.In Karugi & Another V. Kabiya & 3 Others (1987) KLR 347 the Court of Appeal stated that:
19.On the question of ownership of the second motor vehicle, the court notes upon reviewing the record that the Appellant produced the copy of records dated 29th May, 2013 as an exhibit, indicating that at all material times, the registered owner of the second motor vehicle was one Ngigi Joseph. That person was not a party to the suit.
20.The contents of the copy of records are deemed to be prima facie evidence of ownership pursuant to the provisions of Section 8 of the Traffic Act, Cap. 403 Laws of Kenya which provides that the person whose name appears on the registration document in respect to a motor vehicle will be considered the owner of the same. Moreover, the police abstract which the court has similarly re-examined, does not give the name of the owner of the second motor vehicle.
21.There was no evidence to prove beneficial or any other type of ownership of the said vehicle by the 2nd Respondent. Therefore, the court agrees with the reasoning of the trial court that the Appellant did not tender any credible evidence in support of his averment that the 2nd Respondent was the registered and/or beneficial owner of the second motor vehicle, hence justifying a finding of vicarious liability against the said Respondent.
22.Concerning the 1st Respondent who, the Appellant averred that he was the driver of the second motor vehicle on the material date. The police abstract which was tendered as an exhibit, indicates that the 1st Respondent was the driver of the second vehicle at the material time. Furthermore, the Appellant tendered a certified copy of the criminal proceedings in Machakos Traffic Case No. 3112 of 2007 before the Chief Magistrate’s Court at Machakos, to confirm that the 1st Respondent was after the accident charged with a traffic offence, apparently of careless driving in relation to the material accident. He was convicted following his guilty plea and sentenced to pay a fine in the sum of Kshs. 5,000/-.
23.The abovementioned documents are supported by the respective testimonies of Caleb Jaoko (PW1) being the driver of the first motor vehicle on the material date and Police Constable Timothy Kiptoo (PW2) who confirmed that the driver of the second motor vehicle was blamed for causing the accident. The Appellant complained that the trial court erred in determining that the motor vehicle particulars in the criminal proceedings differed from those of the second vehicle in the suit. On the court’s re-examination of the record, it is more plausible than not that the citation of the motor vehicle which was involved in the accident as registration number KAE 349E in the traffic proceedings resulted from an inadvertent typographical error, since the documentation which formed the basis for the criminal proceedings bore the correct details of the second motor vehicle. In the court’s view, the trial court ought to have appreciated this.
24.Hence for the above reasons, the court disagrees with the finding by the trial court in respect of the 1st Respondent’s liability. The court is satisfied that on a balance of probabilities, the Appellant had proved his pleaded case against the 1st Respondent. Consequently, the court finds that the trial court’s finding on liability against the 1st Respondent ought to be disturbed.
25.Regarding the suit reliefs, by the amended plaint it is apparent that while the Appellant sought both general and special damages, he did not pursue the former and it is safe to conclude that the claim was abandoned. Concerning special damages, the Court of Appeal in David Bageine v Martin Bundi  eKLR stated:
26.Further Chesoni, J (as he then was) stated in the case of Ouma v Nairobi City Council (1976) KLR 304See also Hahn -v- Singh  KLR 716.
27.The Appellant through Kariuki Mwangi (PW3) an insurance motor assessor with Pragma-Tech Auto Assessors Limited tendered as an exhibit an assessor’s report documenting damage to his vehicle as assessed by PW3. The witness testified that the damage caused to the first motor vehicle was uneconomical to repair and was written off. And that he charged the sum of Kshs. 6,000/- for the assessment and preparation of the report, which sum was paid by PW1. On his part, the Appellant sought the total sum of Kshs. 656,000/- constituting the assessment charges of Kshs.6,000/- and the pre-accident value of the first motor vehicle assessed at Kshs. 650,000/-. However, at the final submission stage, the Appellant also prayed for the respective sums of Kshs. 6,000/- and Kshs. 4,000/- on assessment court attendance fees and towing charges.
28.In Nkuene Dairy Farmers Co-op Society Ltd & another v Ngacha Ndeiya  eKLR stated that:
29.On the basis of the Appellant’s pleadings and evidence and the above decision, the court is satisfied that the Appellant is entitled to the sum of Kshs. 595,000/- being the pre-accident value of his vehicle as tabulated in the assessment report dated 8.7.2009. However, save for the fee note dated 8.7.2009 for the sum of Kshs. 6,000/- which was tendered as an exhibit, the Appellant did not tender a copy of the receipts evidencing payment of the said sum. Additionally, the court is of the view that pursuant to the principle that special damages must be both specifically pleaded and strictly proved, the Appellant would not be entitled to the further sums sought in his submissions.
30.The upshot therefore is that the appeal partially succeeds. Consequently, the dismissal order by the trial court is hereby set aside and is substituted with a finding of liability against the 1st Respondent. Judgment will be accordingly entered for the Appellant against the 1st Respondent for special damages in the sum of Kshs. 595,000/- with costs and interest from the date of filing of the lower court suit. The appeal against the 2nd Respondent is hereby dismissed. In the circumstances, a fair order is to direct the parties to each bear their own costs in the appeal.