Celtel Kenya Limited & another v Daniel Machira Muthiri [2018] KECA 233 (KLR)
The bottom line
#A company whose vehicle caused an accident was held liable for the driver's negligence because it offered no evidence to disprove ownership.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the first appellant was proved to be the owner of motor vehicle registration No. KAM 225Z notwithstanding that the copy of records showed Kencell as registered proprietor
- 2.Whether the finding on the change of name from Kencell to Celtel, being unpleaded, was baseless conjecture and whether the burden of proof was wrongly shifted to the first appellant
- 3.Whether the award of general damages of Shs. 600,000 was manifestly excessive
- 4.Whether the High Court erred in failing to address the issue of the date from which interest on damages should run
Key legal issues
#Ownership of the motor vehicle and the burden of proof
Celtel was proved to be the owner in law and in fact; the burden shifted to it once possession was shown and it failed to discharge it.
Kencell was the registered proprietor per the copy of records, but section 8 of the Traffic Act deems the registered owner to be the owner unless the contrary is proved, and section 116 of the Evidence Act places the burden on the person denying ownership. The police abstract and respondent's evidence showed Celtel in possession and use; Celtel, which did not deny use or that the second appellant was its employee, offered no evidence and did not issue a third party notice, so the finding stood.
Limits of a second appeal on quantum
The second appeal does not lie against the High Court's decision on general damages; no ground under section 72(1) was made out.
General damages assessment is a judicial discretion of the trial court. The High Court found the award of Shs. 600,000 was not excessive and that the appellants had not shown the trial court proceeded on wrong principles. As the appellants satisfied none of the requirements of section 72(1) of the Civil Procedure Act on quantum, a second appeal does not in law lie.
Interest on damages
The ground on interest failed because the appellants had not appealed against the award of interest before the High Court, and an appellate court cannot determine unraised issues.
Perusal of the memorandum of appeal dated 2nd August 2010 filed in the High Court showed the appellants did not appeal against the award of interest. Further, the first appellate court could not lawfully have considered or determined an issue not raised as a ground of appeal before it, so there was no merit in the ground.
Legal principles established
#- A second appeal to the Court of Appeal lies only on grounds of law under section 72(1) of the Civil Procedure Act, not on findings of fact; a second appeal does not in law lie against the decision of the High Court where no ground under that section is satisfied.
- By section 8 of the Traffic Act, the person in whose name a vehicle is registered is deemed the owner unless the contrary is proved; where the registered owner is shown to be in possession, the burden of proving he is not the owner lies on the person who affirms he is not the owner under section 116 of the Evidence Act.
- Ownership of a motor vehicle is a mixed question of law and fact; oral evidence and a police abstract may prove that the possessor and user of the vehicle is the owner despite the copy of records naming another party.
- A first appellate court cannot lawfully consider or determine an issue that was not raised as a ground of appeal before it.
- An appellate court can interfere with a trial court's assessment of general damages only on the well-known principles; the assessment is an exercise of judicial discretion to be exercised judicially.
Court orders
#- 1.The appeal is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Kisii
- H.C. Civil Appeal No. 185 of 2010
- Jurisdiction invoked
- Section 72(1) of the Civil Procedure Act - second appeal to the Court of Appeal on questions of law
Relief refused
#Setting aside the finding of ownership of the vehicle against the first appellant
The burden shifted to the first appellant, which offered no evidence at trial and did not even issue a third party notice to Kencell
Reduction of the award of general damages of Shs. 600,000
Assessment of general damages is an exercise of judicial discretion, and none of the requirements of section 72(1) of the Civil Procedure Act for a second appeal on quantum was satisfied
Relief on the issue of interest
The appellants did not appeal against the award of interest in the memorandum of appeal before the High Court, and a first appellate court cannot determine an issue not raised as a ground of appeal before it
Costs
The appeal is dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For the foregoing reasons, the appeal is dismissed with costs to the respondent.
It follows, and we find, that a second appeal does not in law lie against the decision of the High Court.
By section 8 of the Traffic Act (Cap 403), the person in whose name a vehicle is registered is deemed to be the owner of the vehicle unless the contrary is proved.
The ownership of a motor vehicle is a mixed question of law and fact.
Lastly the first appellate court could not have lawfully considered or determined an issue which was not raised as a ground of appeal before it.
Issues in the judgment
#Internal inconsistency in the trial magistrate's findings: the finding refers to the '2nd respondent' driving, though the second appellant is the driver; the appellants' notice of appeal in the High Court is also referred to variously as a 'memorandum of appeal'
The judgment states the award of special damages as 'Shs 600/=' which appears to be a typographical repetition of the general damages figure of Shs 600,000
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Celtel Kenya Limited & another v Daniel Machira Muthiri [2018] KECA 233 (KLR)", Case Analysis (2018). Civil Appeal No. 44 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/233/eng@2018-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.