'(Being an appeal from the judgment and decree of Hon. Gillian Simatwo, Adjudicator, in Milimani SC Court Claim No. E1832 of 2023 delivered on 13th October 2023 2023)
JUDGMENT
1. This appeal through the memorandum dated 13th November 2023 seeks to set aside the decree of the learned trial magistrate arising from a judgment of the trial court dated 13th October 2023 on both liability and assessment of damages.
2. The respondent sued the appellant through an undated and unsigned statement of claim. The respondent’s documents accompanying the statement of claim namely list of witnesses and witness statement were dated 20th April 2023 and duly signed. The claim by the respondent was for compensation in the sum of KShs 399,620/= and other incidental costs for material damage allegedly caused to the respondent’s motor vehicle registration number KCT 536M when the same was involved in an accident with the appellant’s motor vehicle registration number KDK 222P on 3rd February 2023 along Red Hill road, Gigiri in Nairobi.
3. The appellant denied the claim through his response to the statement of claim dated 11th May 2023.
4. The case was heard before the Small Claims Court (SCC) whereat the respondent gave evidence as PW 1. and upon considering the evidence, the learned adjudicator in a judgment dated 13th October 2023 found that the claimant had proved his case to the standard applicable before the SCC and entered judgment for the respondent against the appellant in the sum of KShs 482,620/= together with costs and interest.
5. The appellant was dissatisfied with the judgment and has filed this appeal based on twelve listed grounds but which in his submissions he condensed into five issues as follows:
a. That the respondent had not proved ownership of the subject motor vehicle.
b. That the appellant’s option not to testify at the trial could not justify the trial court’s finding that the respondent’s evidence was uncontroverted.
c. That in the circumstances of the case, the traffic case that had no relation to the respondent’s alleged vehicle was not sufficient to establish proof of liability against the appellant.
d. That the learned trial adjudicator failed to apply the requisite standard of proof.
e. That the damages awarded, including future storage charges were not proper.
6. The appeal is disposed of by way of written submissions filed by the appellant and the respondent through their respective learned counsels.
7. The appellant’s submissions reiterate his grounds of appeal. He submits that a reading of the judgment of the trial court shows that it primarily relied on the fact that the appellant failed to testify at the trial and hence the respondent’s evidence remained uncontroverted. The appellant submits that the burden of proof remained with the respondent and the appellant should not be punished for remaining silent. He submits further that the respondent was put to extensive cross-examination to challenge and poke holes in his case.
8. The respondent on his part submits that the facts of the case were straightforward and clear but the appellant tried to mislead the court. He submits that only one ground, that of failure by the respondent to prove ownership of his vehicle is on a point of law and therefore admissible for consideration by this court while the rest are based on the factual aspects of the learned adjudicator’s judgment.
9. The appellant submits that the trial court did not consider and analyze the evidence presented before it by the parties.
10. The respondent has extensively submitted on how the accident occurred and the result thereof including the appellant’s being charged in a traffic case, pleading guilty and being convicted and fined. Further that the appellant was found liable in two other suits arising out of the same accident and he settled the decrees therein.
11. The appellant submits that the respondent failed to produce any evidence at all to prove ownership of his alleged motor vehicle registration number KCT 536M. He submits that the trial court failed to ascertain that ownership of the respondent’s motor vehicle had been proved. He cited the case of Global Vehicles Kenya Limited v Lenana Road Motors [2014] KEHC 1273 (KLR). However, the facts in that case are very different from the ones herein. In that case the plaintiff’s claim was for breach of contract, the amount due under the contract and in default of payment an order for the plaintiff to repossess the vehicles the subject of the contract. The court described the plaintiff’s case as muddled and there were many grounds upon which the court dismissed the plaintiff’s suit. The present case is based on negligence arising from a road traffic accident.
12. In the present case, the respondent, in his testimony, explained his ownership of the vehicle, including how he acquired it by way of purchase, that the logbook was with the bank and that the insurance cover was in his name and issued by Monarch Insurance Company Ltd. All that evidence was not challenged by the defence, either through cross-examination or by offering rebuttal evidence. I am satisfied that the learned adjudicator was correct in her finding that the evidence met the standard of proof under the SCC Act.
13. The appellant submits further that the respondent failed to discharge the evidentiary burden of proof that the appellant was culpable of causing the road traffic accident as required under sections 107, 109 and 112 of the Evidence Act (Cap. 80) Laws of Kenya. He has cited several cases to support this submission.
14. The respondent submits on that issue that he discharged the burden of proof and the evidential burden then shifted to the appellant to controvert the evidence presented by the respondent. He submits that the appellant neither gave oral nor documentary evidence to controvert the respondent’s evidence.
15. The appellant submits further that although the respondent sought to rely on a charge sheet in a traffic case, the motor vehicle in that case was registration number KCT 563M and not KCT 536M the subject of the case before the trial court. That there was no other evidence such as photograph, inspection report or notice to the driver of intention to prosecute, or even the Occurrence Book (OB) extract or police file. He submits that the police abstract alone was not sufficient.
16. On that issue the respondent submits that for now, the appellant is relying on a typographical error in the charge sheet showing that the respondent’s motor vehicle was registration number KCT 563M instead of the correct number being KCT 536M.
17. I do not agree with the submission by the appellant because in his testimony the respondent explained the inconsistence in the two registration numbers as a typographical error in the charge sheet. His motor vehicle registration number was indicated therein as KCT 563M instead of KCT 536M. In any case, the respondent was not the drafter of the charge sheet. The police abstract produced in evidence before the SCC and acknowledged by the appellant, bore the correct registration number KCT 536M. The respondent terms this evidence as insufficient but that is not correct because the appellant pleaded guilty to that charge sheet yet there is no other evidence that he was involved in an accident with a different motor vehicle other than the one indicated in the police abstract and which belonged to the respondent.
18. The appellant also submits that the award of future storage charges was erroneous as no document was made available to support the same and so the same was not proved as special damages.
19. I have considered the considered the grounds of appeal, judgment of the trial court and the submissions of the parties.
20. An appeal to this court from the SCC is on points of law only as provided for under section 38 of the SCC Act. The point for determination is therefore whether the grounds of appeal herein are based on points of law and if so whether the same are established and capable of overturning the judgment of the trial court.
21. The Court of Appeal in M’Riungu v. Republic [1983] KLR 455, gave guidance on how a court should to proceed to determine an appeal on points of law only, thus:
“where a right of appeal is confined to question of law, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of fact and law and it should not interfere with the decision of the trial court or the first appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law”.
22. The appellate court may however interfere with the findings of the trial court where it is demonstrated that there was no evidence at all upon which such findings were based or that the evidence relied upon was of such a nature that no reasonable tribunal, properly addressing its mind on it, could have made such findings as has been held in numerous decisions. For instance, in the case of Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others [2014] KECA 707 (KLR) the Court of Appeal in explaining the distinction between a point of law and a point of fact stated as follows:
“What then is a question of law over which we have jurisdiction, as opposed to a question of fact, over which we have none? Black’s Law Dictionary defines the two terms as follows;
“Matter of fact: A matter involving a judicial inquiry into the truth of alleged facts and Matter of law: A matter involving a judicial inquiry into the applicable law.”
One of the best expositions on the distinction between the two is to be found in the judgment of Denning J in the English case of BRACEGIRDLE Vs. OXLEY (2) [1947] 1 ALL E.R. 126 at p 130;
“The question whether a determination by a tribunal is a determination in point of fact or in point of law frequently occurs. On such a question there is one distinction that must always be kept in mind, namely, the distinction between primary facts and conclusions from those facts. Primary facts are facts which are observed by the witnesses and proved by testimony; conclusions from those facts are inferences deducted by a process of reasoning from them. The determination of primary facts is always a question of fact. It is essentially a matter for the tribunal who sees the witnesses to assess their credibility and to decide the primary facts which depend on them. The conclusions from those facts are sometimes conclusions of fact and sometimes conclusions of law. In a case under the Road Traffic Act, 1930, s. 11, the question whether a speed is dangerous is a question of degree and a conclusion on a question of degree is a conclusion of fact. The court will only interfere if the conclusion cannot reasonably be drawn from the primary facts, and that is the case here. The conclusion drawn by these justices from the primary facts, was not one that could reasonably be drawn from them.”
That reasoning has been adopted in this jurisdiction. In A.G. Vs. DAVID MURAKARU [1960] EA 484, for instance, Chief Justice Ronald Sinclair sitting with Rudd J. adverted to the factual foundations of legal questions by stating that an appellate court restricted to determining questions of law may yet quite properly interfere with the conclusion of a lower court if the same is erroneous in point of law. This is the case where that lower court arrives at a conclusion on the primary facts that it could not reasonably come to. Such a conclusion or decision becomes an error in point of law. See also PATEL Vs. UGANDA [1966] EA 311 and SHAH Vs. AGUTO [1970] EA 263.”
23. The respondent submits that the appellant’s grounds of appeal are mostly based on issues of fact with which this court should not interfere and only one ground, that of the failure to prove ownership of the respondent’s motor vehicle is on a point of law. That issue has been dealt with in the submissions.
24. In arriving at its decision the trial court relied on the respondent’s written statement, documents filed in support of the claim and the respondent’s testimony in court. The appellant did not testify and therefore what he filed either as witness statement or documents was never adopted as evidence under oath and there was no consent on production of the same. The learned adjudicator found as much. The learned adjudicator then went on to state that, “This therefore means that the claimant’s evidence remain (sic) uncontroverted or unchallenged which this court will not have any option but to take the same as absolute truth.”
25. The learned trial adjudicator then went ahead to find that the respondent was charged in court, the claimant produced the charge sheet which among the charges leveled against the respondent in count 3 was driving a motor vehicle under influence of alcohol contrary to section 44(1) of the Traffic Act.
26. The learned adjudicator further stated that proceeding under section 32 of the SCC Act, she took the initiative of the existence of such a suit and established that the respondent was charged for the said offences under case number MCTR/E2149 where plea was taken on 16th March 2023 and sentencing on the same day. For that reason, the learned trial adjudicator found the respondent wholly responsible for the accident.
27. I do not see at any point where the learned adjudicator shifted the burden of proof upon the appellant. What she simply stated was that in the absence of evidence to rebut that tendered by the respondent she believed it as the absolute truth.
28. Under Section 32 of the Act, the strict evidentiary rules applicable in other courts are not wholly applied in the Small Claims Court. It is further provided that the Court may admit as evidence any oral or written testimony, record, or other material even though the same is not admissible as evidence in any other Court under the law of evidence. It follows that even as the standard of proof before the SCC is much more flexible than in the other courts.
29. The SCC Act exempts the court proceedings from the rigid application of the standards of evidence applicable in other court proceedings and permits the court to include as evidence any material that it deems credible or trustworthy. In my view, the standard of proof in a claim before the SCC seems to be more flexible than in other civil courts, where the standard is on a balance of probability. It is upon the adjudicator to determine the material to rely upon. So that where the learned adjudicator has properly applied her mind to the facts and the law, it is upon her view of the claim whether the said standard has been achieved or not.
30. In this case, the learned trial adjudicator fully evaluated the facts presented to the court by the parties and applied the flexible standard of proof in such claims. There is no indication that her application of section 32 of the SCC Act was erroneous.
31. I do not find any reason to fault the learned trial adjudicator on her evaluation of the evidence and application of the law to the facts before her as provided for under the SCC Act. The result may have been otherwise if the case was before the Magistrates Court. However, the appellant having presented himself to the jurisdiction of the SCC he has to contend with the conduct of trials and the flexible application of the rules of evidence. He cannot be heard to complain that the standard of proof was not achieved without offering any explanation how it was not.
32. In the circumstances, I find that the decision of the trial court was properly arrived at and the same is affirmed. I find the appeal herein has no merit and the same is dismissed with costs to the respondent.
33. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 14th day of October 2025 in the presence of:
Machora (Ms) h/b for Thuita for the appellant.
Makokha for the respondent.
Ummu holding brief for Amina: Court assistant.
'
JUDGMENT
1. This appeal through the memorandum dated 13th November 2023 seeks to set aside the decree of the learned trial magistrate arising from a judgment of the trial court dated 13th October 2023 on both liability and assessment of damages.
2. The respondent sued the appellant through an undated and unsigned statement of claim. The respondent’s documents accompanying the statement of claim namely list of witnesses and witness statement were dated 20th April 2023 and duly signed. The claim by the respondent was for compensation in the sum of KShs 399,620/= and other incidental costs for material damage allegedly caused to the respondent’s motor vehicle registration number KCT 536M when the same was involved in an accident with the appellant’s motor vehicle registration number KDK 222P on 3rd February 2023 along Red Hill road, Gigiri in Nairobi.
3. The appellant denied the claim through his response to the statement of claim dated 11th May 2023.
4. The case was heard before the Small Claims Court (SCC) whereat the respondent gave evidence as PW 1. and upon considering the evidence, the learned adjudicator in a judgment dated 13th October 2023 found that the claimant had proved his case to the standard applicable before the SCC and entered judgment for the respondent against the appellant in the sum of KShs 482,620/= together with costs and interest.
5. The appellant was dissatisfied with the judgment and has filed this appeal based on twelve listed grounds but which in his submissions he condensed into five issues as follows:
a. That the respondent had not proved ownership of the subject motor vehicle.
b. That the appellant’s option not to testify at the trial could not justify the trial court’s finding that the respondent’s evidence was uncontroverted.
c. That in the circumstances of the case, the traffic case that had no relation to the respondent’s alleged vehicle was not sufficient to establish proof of liability against the appellant.
d. That the learned trial adjudicator failed to apply the requisite standard of proof.
e. That the damages awarded, including future storage charges were not proper.
6. The appeal is disposed of by way of written submissions filed by the appellant and the respondent through their respective learned counsels.
7. The appellant’s submissions reiterate his grounds of appeal. He submits that a reading of the judgment of the trial court shows that it primarily relied on the fact that the appellant failed to testify at the trial and hence the respondent’s evidence remained uncontroverted. The appellant submits that the burden of proof remained with the respondent and the appellant should not be punished for remaining silent. He submits further that the respondent was put to extensive cross-examination to challenge and poke holes in his case.
8. The respondent on his part submits that the facts of the case were straightforward and clear but the appellant tried to mislead the court. He submits that only one ground, that of failure by the respondent to prove ownership of his vehicle is on a point of law and therefore admissible for consideration by this court while the rest are based on the factual aspects of the learned adjudicator’s judgment.
9. The appellant submits that the trial court did not consider and analyze the evidence presented before it by the parties.
10. The respondent has extensively submitted on how the accident occurred and the result thereof including the appellant’s being charged in a traffic case, pleading guilty and being convicted and fined. Further that the appellant was found liable in two other suits arising out of the same accident and he settled the decrees therein.
11. The appellant submits that the respondent failed to produce any evidence at all to prove ownership of his alleged motor vehicle registration number KCT 536M. He submits that the trial court failed to ascertain that ownership of the respondent’s motor vehicle had been proved. He cited the case of Global Vehicles Kenya Limited v Lenana Road Motors [2014] KEHC 1273 (KLR). However, the facts in that case are very different from the ones herein. In that case the plaintiff’s claim was for breach of contract, the amount due under the contract and in default of payment an order for the plaintiff to repossess the vehicles the subject of the contract. The court described the plaintiff’s case as muddled and there were many grounds upon which the court dismissed the plaintiff’s suit. The present case is based on negligence arising from a road traffic accident.
12. In the present case, the respondent, in his testimony, explained his ownership of the vehicle, including how he acquired it by way of purchase, that the logbook was with the bank and that the insurance cover was in his name and issued by Monarch Insurance Company Ltd. All that evidence was not challenged by the defence, either through cross-examination or by offering rebuttal evidence. I am satisfied that the learned adjudicator was correct in her finding that the evidence met the standard of proof under the SCC Act.
13. The appellant submits further that the respondent failed to discharge the evidentiary burden of proof that the appellant was culpable of causing the road traffic accident as required under sections 107, 109 and 112 of the Evidence Act (Cap. 80) Laws of Kenya. He has cited several cases to support this submission.
14. The respondent submits on that issue that he discharged the burden of proof and the evidential burden then shifted to the appellant to controvert the evidence presented by the respondent. He submits that the appellant neither gave oral nor documentary evidence to controvert the respondent’s evidence.
15. The appellant submits further that although the respondent sought to rely on a charge sheet in a traffic case, the motor vehicle in that case was registration number KCT 563M and not KCT 536M the subject of the case before the trial court. That there was no other evidence such as photograph, inspection report or notice to the driver of intention to prosecute, or even the Occurrence Book (OB) extract or police file. He submits that the police abstract alone was not sufficient.
16. On that issue the respondent submits that for now, the appellant is relying on a typographical error in the charge sheet showing that the respondent’s motor vehicle was registration number KCT 563M instead of the correct number being KCT 536M.
17. I do not agree with the submission by the appellant because in his testimony the respondent explained the inconsistence in the two registration numbers as a typographical error in the charge sheet. His motor vehicle registration number was indicated therein as KCT 563M instead of KCT 536M. In any case, the respondent was not the drafter of the charge sheet. The police abstract produced in evidence before the SCC and acknowledged by the appellant, bore the correct registration number KCT 536M. The respondent terms this evidence as insufficient but that is not correct because the appellant pleaded guilty to that charge sheet yet there is no other evidence that he was involved in an accident with a different motor vehicle other than the one indicated in the police abstract and which belonged to the respondent.
18. The appellant also submits that the award of future storage charges was erroneous as no document was made available to support the same and so the same was not proved as special damages.
19. I have considered the considered the grounds of appeal, judgment of the trial court and the submissions of the parties.
20. An appeal to this court from the SCC is on points of law only as provided for under section 38 of the SCC Act. The point for determination is therefore whether the grounds of appeal herein are based on points of law and if so whether the same are established and capable of overturning the judgment of the trial court.
21. The Court of Appeal in M’Riungu v. Republic [1983] KLR 455, gave guidance on how a court should to proceed to determine an appeal on points of law only, thus:
“where a right of appeal is confined to question of law, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of fact and law and it should not interfere with the decision of the trial court or the first appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law”.
22. The appellate court may however interfere with the findings of the trial court where it is demonstrated that there was no evidence at all upon which such findings were based or that the evidence relied upon was of such a nature that no reasonable tribunal, properly addressing its mind on it, could have made such findings as has been held in numerous decisions. For instance, in the case of Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others [2014] KECA 707 (KLR) the Court of Appeal in explaining the distinction between a point of law and a point of fact stated as follows:
“What then is a question of law over which we have jurisdiction, as opposed to a question of fact, over which we have none? Black’s Law Dictionary defines the two terms as follows;
“Matter of fact: A matter involving a judicial inquiry into the truth of alleged facts and Matter of law: A matter involving a judicial inquiry into the applicable law.”
One of the best expositions on the distinction between the two is to be found in the judgment of Denning J in the English case of BRACEGIRDLE Vs. OXLEY (2) [1947] 1 ALL E.R. 126 at p 130;
“The question whether a determination by a tribunal is a determination in point of fact or in point of law frequently occurs. On such a question there is one distinction that must always be kept in mind, namely, the distinction between primary facts and conclusions from those facts. Primary facts are facts which are observed by the witnesses and proved by testimony; conclusions from those facts are inferences deducted by a process of reasoning from them. The determination of primary facts is always a question of fact. It is essentially a matter for the tribunal who sees the witnesses to assess their credibility and to decide the primary facts which depend on them. The conclusions from those facts are sometimes conclusions of fact and sometimes conclusions of law. In a case under the Road Traffic Act, 1930, s. 11, the question whether a speed is dangerous is a question of degree and a conclusion on a question of degree is a conclusion of fact. The court will only interfere if the conclusion cannot reasonably be drawn from the primary facts, and that is the case here. The conclusion drawn by these justices from the primary facts, was not one that could reasonably be drawn from them.”
That reasoning has been adopted in this jurisdiction. In A.G. Vs. DAVID MURAKARU [1960] EA 484, for instance, Chief Justice Ronald Sinclair sitting with Rudd J. adverted to the factual foundations of legal questions by stating that an appellate court restricted to determining questions of law may yet quite properly interfere with the conclusion of a lower court if the same is erroneous in point of law. This is the case where that lower court arrives at a conclusion on the primary facts that it could not reasonably come to. Such a conclusion or decision becomes an error in point of law. See also PATEL Vs. UGANDA [1966] EA 311 and SHAH Vs. AGUTO [1970] EA 263.”
23. The respondent submits that the appellant’s grounds of appeal are mostly based on issues of fact with which this court should not interfere and only one ground, that of the failure to prove ownership of the respondent’s motor vehicle is on a point of law. That issue has been dealt with in the submissions.
24. In arriving at its decision the trial court relied on the respondent’s written statement, documents filed in support of the claim and the respondent’s testimony in court. The appellant did not testify and therefore what he filed either as witness statement or documents was never adopted as evidence under oath and there was no consent on production of the same. The learned adjudicator found as much. The learned adjudicator then went on to state that, “This therefore means that the claimant’s evidence remain (sic) uncontroverted or unchallenged which this court will not have any option but to take the same as absolute truth.”
25. The learned trial adjudicator then went ahead to find that the respondent was charged in court, the claimant produced the charge sheet which among the charges leveled against the respondent in count 3 was driving a motor vehicle under influence of alcohol contrary to section 44(1) of the Traffic Act.
26. The learned adjudicator further stated that proceeding under section 32 of the SCC Act, she took the initiative of the existence of such a suit and established that the respondent was charged for the said offences under case number MCTR/E2149 where plea was taken on 16th March 2023 and sentencing on the same day. For that reason, the learned trial adjudicator found the respondent wholly responsible for the accident.
27. I do not see at any point where the learned adjudicator shifted the burden of proof upon the appellant. What she simply stated was that in the absence of evidence to rebut that tendered by the respondent she believed it as the absolute truth.
28. Under Section 32 of the Act, the strict evidentiary rules applicable in other courts are not wholly applied in the Small Claims Court. It is further provided that the Court may admit as evidence any oral or written testimony, record, or other material even though the same is not admissible as evidence in any other Court under the law of evidence. It follows that even as the standard of proof before the SCC is much more flexible than in the other courts.
29. The SCC Act exempts the court proceedings from the rigid application of the standards of evidence applicable in other court proceedings and permits the court to include as evidence any material that it deems credible or trustworthy. In my view, the standard of proof in a claim before the SCC seems to be more flexible than in other civil courts, where the standard is on a balance of probability. It is upon the adjudicator to determine the material to rely upon. So that where the learned adjudicator has properly applied her mind to the facts and the law, it is upon her view of the claim whether the said standard has been achieved or not.
30. In this case, the learned trial adjudicator fully evaluated the facts presented to the court by the parties and applied the flexible standard of proof in such claims. There is no indication that her application of section 32 of the SCC Act was erroneous.
31. I do not find any reason to fault the learned trial adjudicator on her evaluation of the evidence and application of the law to the facts before her as provided for under the SCC Act. The result may have been otherwise if the case was before the Magistrates Court. However, the appellant having presented himself to the jurisdiction of the SCC he has to contend with the conduct of trials and the flexible application of the rules of evidence. He cannot be heard to complain that the standard of proof was not achieved without offering any explanation how it was not.
32. In the circumstances, I find that the decision of the trial court was properly arrived at and the same is affirmed. I find the appeal herein has no merit and the same is dismissed with costs to the respondent.
33. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 14th day of October 2025 in the presence of:
Machora (Ms) h/b for Thuita for the appellant.
Makokha for the respondent.
Ummu holding brief for Amina: Court assistant.
'