Timon Kosgei /Law Reports
27 February 2006
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Nairobi — A police abstract is sufficient to prove, on a balance of probability, the ownership of a motor vehicle. This is the case only where there is no evidence to rebut the same. Samuel Mukunya Kamunge versus John Mwangi Kamuru [2005] eKLR ( www.kenyalaw.org ) High Court at Nyeri, (H.M Okwengu J), November 23, 2005.
It was alleged that Wahome was lawfully travelling as a fare paying passenger in motor vehicle KAH 264A, owned by the respondent, when he sustained fatal injuries as a result of an accident. This was allegedly caused by negligence of the respondent, or his servant or agent, in management and control of the car.
The respondent denied all this, specifically the claim relating to his alleged ownership of motor vehicle KAH 264A.
At the hearing of the suit, the appellant called police constable Stephen Kioko, an officer attached to Nyeri traffic base, who testified that he received a report of an accident involving motor vehicle KAH 264A along the Nyeri/Nyahururu road.
He went to the scene and found that the accident was a self-involving one, which occurred after a tyre bust. He confirmed that the deceased, Kamunge Wahome, was one of the passengers. He produced a police abstract report of the accident, which named the respondent as the owner of the car.
The second witness was the appellant. He testified that he is a son of the deceased and the administrator of his estate as per letters of administration, which he produced in evidence. He received a report of the accident from the police, went to Nyeri Hospital mortuary and identified his father's body.
He produced a death certificate in respect of the deceased. He also identified the abstract produced by police constable Stephen Kioko as the one he received from the police. He, therefore, instructed an advocate to write letters of demand to the owner of the car and sent a statutory notice to the insurers. The appellant said the respondent was the owner of the car because the police abstract stated so.
At the close of the evidence for the plaintiff, the advocate for the respondent opted to call no evidence but filed written submissions in which he urged the court to dismiss the appellant's case.
He said the appellant had failed to prove that the deceased was a passenger in motor vehicle KAH 264A, that the car belonged to the respondent, and that the accident was caused by the respondent's negligence.
The counsel for the respondent said if the appellant was entitled to any damages, then they should be limited to Sh60,000 for loss of expectation of life and Sh5,000 for pain and suffering.
He said no damages should be awarded for loss of dependency as no dependants were pleaded in the plaint, and that the deceased, being an old man of 87 years, was the dependant rather than the provider.
For the appellant, it was submitted that sufficient evidence was adduced which proved that there was an accident involving the respondent's motor-vehicle and that the accident was caused by a rear tyre burst.
Further, it was stated that since the respondent offered no explanation for the tyre burst, and the subsequent loss of control of the car, the accident was consistent with negligence or lack of due diligence.
The court was urged to find the respondent fully liable. The court was further urged to award damages under the Law Reform Act (Cap 26) and the Fatal Accidents Act (Cap 32), totalling Sh428,000.
The trial magistrate dismissed the appellant's case, stating that he had not proved ownership of the vehicle and further that a police abstract could not be held as sufficient proof of ownership.
On appeal, the thrust of his argument was that the trial magistrate erred in rejecting the police abstract as sufficient proof of ownership of the car as there was no evidence adduced by the respondent to rebut that evidence.
Relying on Kasereka versus Gateway Insurance Company Ltd. [2003] 2 E.A. 502, he said the police abstract was sufficient to prove, on a balance of probability, ownership of a car.
The appellant's counsel further attacked the trial magistrate's finding that the best evidence to prove ownership of a car is a certificate of search from the registrar of motor vehicles.
Relying on various decided cases, he submitted that a log book or registration card is only prima facie evidence of ownership and can be rebutted through evidence.
The High Court stated that ownership of the car was one of the crucial issues in determination of the suit, and that it was incumbent upon the appellant to prove, on a balance of probability, that the car belonged to the respondent.
The court further held that the appellant sought to discharge this obligation by producing a police abstract report of the accident, which showed that the respondent was the owner of the motor vehicle.
That the officer who produced the abstract had visited the scene and verified his information and since no evidence was adduced on behalf of the respondent, there was no evidence to rebut the report.
The court held that the evidence before it was that motor vehicle KAH 264A, owned by the respondent, was involved in a fatal accident.
On a certificate of search, the judge said the same would have shown the registered owner of the car, according to records held by the registrar of motor vehicles. But it was not conclusive proof of actual ownership of the car, as per section 8 of the Traffic Act, he said.
On this, the court held that the trial magistrate was wrong in holding that only a certificate of search from the Registrar of motor vehicles could prove ownership of the motor vehicle.
It held that a police abstract, having been produced showing the respondent as the owner of the car, and evidence having been adduced that letters of demand sent to the respondent elicited no response from him, and the respondent having offered no evidence to contradict the information on the police abstract report, the appellant had established on a balance of probability that motor vehicle KAH 264A was owned by the respondent.
The court found that there was sufficient evidence that the deceased was a passenger in the car and died as a result of fatal injuries sustained from the accident on August 19, 1997.
On negligence by the respondent, the judge said there was evidence that there was a rear tyre burst and that the driver lost control of the car.
Since no evidence was adduced by the respondent to rebut the above evidence or to explain how the accident occurred, then the court was satisfied that a rear tyre burst would not ordinarily cause a car to overturn if it is being driven at a reasonable speed and with due care and attention.
The evidence was sufficient to establish, on a balance of probabilities, that there was negligence on the part of the respondent's driver, hence his inability to control the car.
In allowing the appeal, the court found that the accident was wholly caused by negligence of the respondent's driver or agent, for which the respondent was vicariously liable.
It found the respondent 100 per cent liable. On quantum, the court found that Sh80,000 would be adequate compensation for loss of life expectancy and Sh10,000 for pain and suffering.
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