Of exclusion from liability.
29.DW1 testified that she bought the tractor from Kenya tractors company. She stated that she was not given a log book but she conducted a search and knew it belonged to Kenya tractors. She however, did not have any copies of a logbook or search to support her claim.
30.PW1 testified that the 1st respondent imported the tractor. He produced importation documents. He further stated that from their records the tractor was sold on 04.-8.2014 and released to the buyer the same day. However, there was no formal arrangement made between the 1st respondent and the 2nd respondent. PW1 produced an invoice dated 07.22.2014. The chassis number indicated in the invoice matched that in the record of NTSA.
31.The 3rd respondent did not produce any evidence to show that she had bought the tractor as she alleged. She only produced a bank statement showing that the appellant loaned her Kshs. 2,658,900/= and the said money was forwarded to Kenya tractors and equipment ltd.
32.PW1 testified that although there was no formal agreement for the sale of the motor tractor for a consideration of Kshs. 2,556,640, there was a verbal agreement to that end which was supported by the invoice to the 2nd and 3rd respondents- but they never paid the purchase price.
33.The invoice produced by the 1st respondent for a sum of Kshs. 2,556,640/= indicates the chassis number of the suit tractor which tallies with the chassis number of the copy of records.
34.From the record, there is no evidence by the appellant to explain their registration as co-owners of the suit tractor. This will be borne out of the analysis below.
35.The court finds this case to be one with intriguing facts and incidents. The motor vehicle copy of records from NTSA indicates the suit tractor's chassis no. as PY5503E005060 which matches the chassis no. in the invoice no. PVINVSO5744 by TATA Africa holdings (Kenya) ltd- the 1st respondent herein. And, this is the vehicle that was registered as number KTCB 308M.
36.The appellant (Equity bank) in its letter of offer dated 10.10.2014 addressed to the 2nd and 3rd respondents stated at paragraph 6 that the proposed facility will be secured by joint registration and chattels mortgage over the proposed one new John Deere agricultural Tractor: model 5503-75HP-4WD with 16 row agro-master planter. serial number :004. Further the pro-forma invoice by Kenya Tractors & Equipment Limited dated 27.02.2014 makes a reference to John Deere agricultural tractors: model 5503-75HP-4WD. There is also the letter of notification by equity bank addressed to Kenya Tractors & Equipment Limited.
37.A motor vehicle is only specifically identifiable by the chassis number. The pro-forma invoice by Kenya Tractors & Equipment Limited, the correspondences and the chattels mortgage with equity bank do not bear this crucial information. Therefore, the appellant has not established the relationship among, the chattels mortgage herein, the pro-forma invoice by Kenya Tractors & Equipment Ltd and letter of notification, and the tractor in issue which is the tractor that was sold by the 1st respondent to the 2nd and 3rd respondents. But, Equity bank was nonetheless, registered as a beneficial owner of the said tractor. Although the appellant stated that it never had any relationship with the 1st respondent- which is true in the formal sense-, but, their registration in the tractor in issue- which has not been specifically and duly identified to be the security in the chattels mortgage- has created a nexus to the suit property on which a cause of action may be sustained by the 1st respondent.
38.Astonishingly, the 2nd and 3rd respondent stated that the tractor in issue was sourced from Kenya Tractors & Equipment Limited and financed by the appellant. Documents produced by the appellant refer and relate to the said company. This was their allegation. Thus, one wonders why this company was never made a party or a witness in the suit, or called upon through a formal notice to indemnify or contribute to any liability that may arise in the suit.
39.These lapses on the part of Equity are major obstacles to their quest in this appeal which justifies a course that they be left where the court found them.
40.On the basis of the evidence, the 1st respondent proved its case on balance of probabilities. There is also no justification to exclude the appellant from liability.
41.As a consequence, the appeal is dismissed. However, in light of the lapses noted on the part of parties herein, there is no order as to costs on the appeal. Orders accordingly.