1. The background of the appeal is a claim filed in the Small Claims Court through a Statement of Claim dated 6th August 2024 where the Claimant averred that on or about 30th March 2024, the Claimant was a careful law abiding pedestrian walking along Mombasa-Malindi road at around VOK area when motor vehicle registration number KYS 368 owned and driven by the Defendant or authorized driver, servant, agent and/or employee so carelessly and/or negligently caused it to lose control, veer off the road and hit the Claimant as a result whereof he suffered severe body injuries.
2. The Claimant averred that they sustained mild head injury with deep cut left frontal/temporal/parietal area of the scalp, large volume acute frontal-temporal-parietal hematoma, and blunt trauma to the left wrist/forearm.
3. The Claimant prayed for compensation to be determined by court, special damages of Kshs. 98,452 and costs.
4. The Respondent filed a Response to the Statement of Claim dated 2nd September 2024 where they denied liability to the Claimant and averred that the Claimant was negligent and solely to blame. The Respondent’s driver, Shindo Matoi Kalumbo, in his Witness Statement dated 12th September 2024 stated that the Claimant was riding a bicycle at a high speed and rammed at the body of the vehicle and fell.
5. The court gave directions for the matter to proceed by way of document and judgment delivered on 30th October 2024.
6. Being dissatisfied, the Appellant appealed the judgment through the Memorandum of Appeal dated 14th November 2024 on the following grounds: -
1. THAT the Learned Magistrate erred in law and in fact in disregarding the appellants evidence and the documents on record thus arriving at an erroneous conclusion on liability.
2. THAT the learned trial magistrate erred in law and in fact by whimsically concluding that the deceased contributed 50 percent to the occurrence of the accident without any cogent proof and evidence by the Respondents on how the Claimant might have contributed to occurrence of the accident.
3. THAT the learned trial magistrate erred in law and fact by apportioning liability at 50:50% without any regard to the evidence on record produced by the appellant.
4. THAT the learned trial magistrate erred in law and in fact in making an award for general damages for pain and suffering that was low after disregarding awards for similar injuries, the doctrine of stare decisis and public interest.
5. THAT the learned trial magistrate erred in law and in fact in awarding Kshs. 98,452/= as special damages despite the Plaintiff producing receipts worth Kshs. 145,602/=
6. THAT the learned trial magistrate erred in failing to award costs to the Claimant despite proof of service of demand letter.
7. The Appellant prayed that the appeal be allowed with orders that the judgment dated 30th October 2024 on general damages and special damages and costs be interfered with and assess the items upwards, that the liability of 50:50% be set aside, and that the Appellant be awarded costs of the Appeal.
8. The appeal was canvassed by way of written submissions. The Appellant in their submissions dated 27th October 2025 challenged the trial court’s finding on liability, arguing that the learned magistrate erred in apportioning liability equally at 50:50 between the parties. The Appellant maintained that he was a pedestrian at the time of the accident, while the Respondent was the owner of motor vehicle registration number KYS 368. In support of this position, the Appellant relied on a Police Abstract dated 13th June 2024, which identified him as a pedestrian involved in an accident with the Respondent’s vehicle.
9. The Appellant submitted that although the Respondent referred to a person named Shindo Matoi Kalumbo as the driver, no evidence was produced to establish that he was indeed the driver of the vehicle at the material time. Further, the Respondent’s account that a boy riding a bicycle collided with the vehicle was unsupported by any documentary or other evidence. The Appellant emphasized that the Police Abstract consistently described him as a pedestrian and not a cyclist, making the Respondent’s version of events unsubstantiated.
10. It was further argued that the Respondent failed to produce evidence, such as a sketch map, to support allegations regarding parked vehicles, traffic congestion, or the road layout. The Appellant contended that motorists bear a greater duty of care because motor vehicles are capable of causing significant harm to pedestrians. Since the Respondent’s driver acknowledged the presence of parked vehicles and traffic, he ought to have exercised greater vigilance and anticipated the presence of pedestrians attempting to navigate around the obstruction.
11. The Appellant maintained that he proved his case on a balance of probabilities and that the evidence established the Respondent’s sole responsibility for the accident. He noted that the occurrence of the accident and ownership of the vehicle were not disputed. Medical documents, including a discharge summary and medical report, together with the Police Abstract, confirmed that he sustained injuries as a result of the accident involving the Respondent’s vehicle.
12. Accordingly, the Appellant submitted that there was no evidential basis for a finding of contributory negligence and that the trial magistrate erred in apportioning liability equally. He urged the appellate court to set aside the 50:50 apportionment and hold the Respondent wholly liable for the accident, arguing that the Respondent’s driver breached the duty of care expected of a reasonable and prudent motorist. In support of this argument, reliance was placed on Hellen Atieno Oduor v S S Mehta & Sons Ltd & Muthithu Nanua [2015] KEHC 6638 (KLR).
13. On the issue of special damages, the Appellant argued that the trial court erred by awarding only Kshs. 98,452 despite evidence showing special damages amounting to Kshs. 145,602.27. The Appellant submitted that receipts supporting the claimed amount were produced at trial and therefore the full sum should have been awarded. Reliance was placed on Rosemary Wanjiru Kungu v Elijah Macharia Githinji & another (2014) eKLR and Douglas Ooga Nyansimora v Sammy Mutunga Makau & another [2016] KEHC 1197 (KLR), which affirm the principle that special damages must not only be specifically pleaded but also strictly proved.
14. The Respondent in their submissions dated 5th November 2025 arguing that it is incompetent as it contravenes Section 38(1) of the Small Claims Court Act, which limits appeals from the Small Claims Court to matters of law only. The Respondent contended that the Memorandum of Appeal expressly alleges that the trial adjudicator erred in both law and fact, particularly regarding the apportionment of liability and the award of special damages. According to the Respondent, these are factual issues arising from the trial court’s assessment of evidence and witness credibility and are therefore not amenable to appellate review. Reliance was placed on Fidelity Insurance Company Ltd v Korir (Civil Appeal No. 13 of 2023) [2024] KEHC 3365 (KLR).
15. Without prejudice to that objection, the Respondent submitted that even if the appeal were found to raise points of law, it lacks merit. The Respondent noted that the proceedings before the Small Claims Court were conducted through documentary evidence and written submissions. Although a Police Abstract was produced, it merely indicated that the matter had been referred to insurance for civil remedy and did not attribute blame for the accident. The Respondent maintained that liability had been denied in the response to the claim and that, apart from the Appellant’s witness statement and the Police Abstract, no independent evidence was tendered to establish negligence on the part of the Respondent’s driver. Since neither party produced conclusive evidence regarding fault, the trial adjudicator properly apportioned liability equally between the parties. Reliance was placed on Ojwang & another v Kagunya (Civil Appeal No. 287 of 2023) [2025] KEHC 6153 (KLR).
16. On special damages, the Respondent submitted that the Appellant had specifically pleaded and prayed for Kshs. 98,452 in the Statement of Claim and was consequently awarded that exact amount. The Respondent argued that special damages must be specifically pleaded and strictly proved, and that parties are bound by their pleadings. It was further submitted that the Appellant had sought leave to amend the claim for special damages during the proceedings but, after being given the option either to withdraw the suit and file a fresh claim or proceed with the existing pleadings, elected to proceed without amendment. The Appellant could not therefore seek a higher amount on appeal contrary to the pleadings before the trial court.
17. Regarding general damages, the Respondent contended that the Appellant’s injuries consisted of a mild head injury, a scalp cut wound, a frontal-temporal-parietal haematoma, and blunt trauma to the left wrist and forearm. According to the medical report prepared by Dr. Kiema, the injuries were soft tissue in nature and were expected to heal without permanent disability. Relying on Francis Omari Ogaro v JAO (a minor suing through next friend and father God) [2021] KEHC 2358 (KLR), the Respondent argued that the injuries in the cited case were comparable, if not more severe, and that the award of Kshs. 350,000 was excessive. The Respondent therefore urged that the award be reduced to Kshs. 180,000.
18. Finally, on costs, the Respondent submitted that the trial adjudicator properly exercised the discretion conferred by Section 33 of the Small Claims Court Act in declining to award costs and directing each party to bear its own costs. The adjudicator provided reasons for that decision, and there was therefore no basis for appellate interference.
Analysis
19. The role of the first appellate court to reexamine and to reevaluate evidence to come up with its own findings was set out in Selle v Associated Motor Boat Co. (1968) E.A 123 as follows: -
“… Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect …”
20. I have considered the Record of Appeal dated 7th April 2025 and submissions by the parties. The issues for determination are: -
(a) Whether the appeal is competent under Section 38(1) of the Small Claims Court Act
(b) Whether the learned Adjudicator erred in apportioning liability at 50:50
(c) Whether the learned Adjudicator erred in awarding special damages of Kshs. 98,452
(d) Whether the award of general damages warrants interference
(e) Whether the court should interfere with the order on costs
21. On whether the appeal is competent under Section 38(1) of the Small Claims Court Act, the Respondent submitted that the appeal raises matters of fact contrary to Section 38(1) of the Small Claims Court Act which limits appeals to matters of law only.
22. This court agrees that appeals from the Small Claims Court lie only on matters of law. However, where it is alleged that the trial court misapprehended the legal burden of proof, applied the wrong legal principles in apportioning liability, or awarded damages contrary to settled legal principles, such complaints raise questions of law. In Fidelity Insurance Company Ltd v Korir [2024] KEHC 3365 (KLR), the court emphasized that: -
“I agree, as pronounced by the Court of Appeal in the case of Peter Gichuki King’ara Vs. IEBC & 2 Others, Nyeri Civil Appeal No. 31 of 2013, that the question whether the trial Court properly considered and/or evaluated the evidence on record and arrived at a correct determination supported by law and evidence is a question of law, and not fact. However, that statement cannot just be pasted in the ground of appeal and left at that. Some effort must be made in the drafting to indicate how and in what manner exactly the trial Court is being faulted for not properly considering and/or evaluating the evidence on record. That statement must also be construed within the context of the Small Claims Court Act, its aspirations, intentions and purpose. The Act was enacted to address a genuine concern and it is the duty of the Court to ensure that focus is not lost on such concern and that the mischief that the Act sought to cure remains within sight.”
23. This court is therefore satisfied that the appeal raises arguable questions of law and is properly before this court.
24. On whether the learned Adjudicator erred in apportioning liability at 50:50, the Appellant contended that he was a pedestrian and that the Police Abstract identified him as such. The Respondent, on the other hand, relied on a witness statement alleging that the Appellant was riding a bicycle and collided with the vehicle.
25. It is trite that a Police Abstract, while admissible evidence of the occurrence of an accident, is not conclusive proof of liability. Police abstract merely evidences the fact of an accident unless supported by further evidence establishing negligence. The court in Ojwang & another v Kagunya [2025] KEHC 6153 (KLR) held that: -
“… a police abstract cannot be used to determine that a party is to blame for the occurrence of an accident just because it indicates as much; as such, it was an error on the learned trial magistrate’s part to find that the appellants were liable for the accident, simply because the police abstract indicated so. The learned trial magistrate was therefore required to interrogate the evidence on record to determine who was liable for the occurrence of the accident.”
26. In the present matter, neither party produced a sketch plan, investigation file, police findings or independent witness evidence. The Police Abstract merely confirmed that an accident occurred involving the Appellant and motor vehicle registration number KYS 368 and that the matter was referred for civil remedy.
27. The burden of proving negligence rested upon the Appellant pursuant to Sections 107 and 108 of the Evidence Act. While the Appellant established the occurrence of the accident and the injuries sustained, there was insufficient evidence demonstrating precisely how the accident occurred and attributing fault exclusively to the Respondent.
28. The learned Adjudicator observed that each party blamed the other and that no conclusive police investigations were tendered. In circumstances where the evidence does not clearly establish fault, courts have often apportioned liability equally between the parties. The court in Hussein Omar Farah v Lento Agencies [2006] KECA 388 (KLR) held that: -
“Both parties insisted that the fault lay with the other side. As no side could establish the fault of the opposite party we would think that liability for the accident could be equally on both the drivers. We therefore hold each driver equally to blame.”
29. This court finds no error of law in the learned Adjudicator’s approach. The finding on liability at 50:50 was supported by the evidence presented and the applicable legal principles.
30. On whether the learned Adjudicator erred in awarding special damages of Kshs. 98,452, the Appellant contended that he produced receipts amounting to Kshs. 145,602.27 and therefore ought to have been awarded that amount.
31. The law is settled that special damages must not only be specifically pleaded but must also be strictly proved as held in Hahn v Singh [1985] KECA 129 (KLR).
32. The Statement of Claim specifically pleaded special damages of Kshs. 98,452. The record further shows that when the issue of amendment arose before the Small Claims Court, the Appellant elected to proceed with the claim as pleaded.
33. Parties are bound by their pleadings. The court cannot award more than what has been specifically pleaded regardless of the evidence tendered. This principle was reiterated in Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR). Consequently, the learned Adjudicator correctly awarded the pleaded sum of Kshs. 98,452.
34. On whether the award of general damages warrants interference, an appellate court will only interfere with an award of damages if it is shown that the trial court acted on wrong principles, took into account irrelevant factors, failed to consider relevant factors, or that the award is inordinately high or low. The court in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR) held that: -
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”
35. The injuries sustained by the Appellant were a mild head injury, scalp lacerations with haematoma and blunt trauma to the left wrist and forearm. The medical report indicated that the injuries were expected to heal without permanent disability.
36. Having considered the authorities cited by the parties, including Francis Omari Ogaro v JAO (Minor) [2021] KEHC 2358 (KLR), this court is not persuaded that the award of Kshs. 350,000 was either inordinately high or inordinately low as to warrant appellate interference. The award of general damages is therefore upheld.
37. On whether the court should interfere with the order on costs, costs are in the discretion of the court. Under Section 33 of the Small Claims Court Act, the Adjudicator has wide discretion regarding costs.
38. An appellate court will not interfere with the exercise of judicial discretion unless it is shown that the discretion was exercised capriciously, upon wrong principles or without regard to relevant considerations as held in Mbogo & another v Shah [1968] EA 93. The learned Adjudicator gave reasons for directing each party to bear its own costs. No basis has been demonstrated to justify interference with that exercise of discretion.
Determination
39. Accordingly, the court makes the following orders;
a. The appeal lacks merit and is hereby dismissed.
b. The judgment of the Small Claims Court delivered on 30th October 2024 is hereby upheld in its entirety.
c. Each party shall bear its own costs of the appeal.
Dated and delivered virtually at Mombasa this 25th day of June, 2026
………………………..
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of: -
Ms. Kihoro Advocate for the Appellant
Ms. Amarshi Advocate for the Respondent
Ms. Salwa, Court Assistant
2. The Claimant averred that they sustained mild head injury with deep cut left frontal/temporal/parietal area of the scalp, large volume acute frontal-temporal-parietal hematoma, and blunt trauma to the left wrist/forearm.
3. The Claimant prayed for compensation to be determined by court, special damages of Kshs. 98,452 and costs.
4. The Respondent filed a Response to the Statement of Claim dated 2nd September 2024 where they denied liability to the Claimant and averred that the Claimant was negligent and solely to blame. The Respondent’s driver, Shindo Matoi Kalumbo, in his Witness Statement dated 12th September 2024 stated that the Claimant was riding a bicycle at a high speed and rammed at the body of the vehicle and fell.
5. The court gave directions for the matter to proceed by way of document and judgment delivered on 30th October 2024.
6. Being dissatisfied, the Appellant appealed the judgment through the Memorandum of Appeal dated 14th November 2024 on the following grounds: -
1. THAT the Learned Magistrate erred in law and in fact in disregarding the appellants evidence and the documents on record thus arriving at an erroneous conclusion on liability.
2. THAT the learned trial magistrate erred in law and in fact by whimsically concluding that the deceased contributed 50 percent to the occurrence of the accident without any cogent proof and evidence by the Respondents on how the Claimant might have contributed to occurrence of the accident.
3. THAT the learned trial magistrate erred in law and fact by apportioning liability at 50:50% without any regard to the evidence on record produced by the appellant.
4. THAT the learned trial magistrate erred in law and in fact in making an award for general damages for pain and suffering that was low after disregarding awards for similar injuries, the doctrine of stare decisis and public interest.
5. THAT the learned trial magistrate erred in law and in fact in awarding Kshs. 98,452/= as special damages despite the Plaintiff producing receipts worth Kshs. 145,602/=
6. THAT the learned trial magistrate erred in failing to award costs to the Claimant despite proof of service of demand letter.
7. The Appellant prayed that the appeal be allowed with orders that the judgment dated 30th October 2024 on general damages and special damages and costs be interfered with and assess the items upwards, that the liability of 50:50% be set aside, and that the Appellant be awarded costs of the Appeal.
8. The appeal was canvassed by way of written submissions. The Appellant in their submissions dated 27th October 2025 challenged the trial court’s finding on liability, arguing that the learned magistrate erred in apportioning liability equally at 50:50 between the parties. The Appellant maintained that he was a pedestrian at the time of the accident, while the Respondent was the owner of motor vehicle registration number KYS 368. In support of this position, the Appellant relied on a Police Abstract dated 13th June 2024, which identified him as a pedestrian involved in an accident with the Respondent’s vehicle.
9. The Appellant submitted that although the Respondent referred to a person named Shindo Matoi Kalumbo as the driver, no evidence was produced to establish that he was indeed the driver of the vehicle at the material time. Further, the Respondent’s account that a boy riding a bicycle collided with the vehicle was unsupported by any documentary or other evidence. The Appellant emphasized that the Police Abstract consistently described him as a pedestrian and not a cyclist, making the Respondent’s version of events unsubstantiated.
10. It was further argued that the Respondent failed to produce evidence, such as a sketch map, to support allegations regarding parked vehicles, traffic congestion, or the road layout. The Appellant contended that motorists bear a greater duty of care because motor vehicles are capable of causing significant harm to pedestrians. Since the Respondent’s driver acknowledged the presence of parked vehicles and traffic, he ought to have exercised greater vigilance and anticipated the presence of pedestrians attempting to navigate around the obstruction.
11. The Appellant maintained that he proved his case on a balance of probabilities and that the evidence established the Respondent’s sole responsibility for the accident. He noted that the occurrence of the accident and ownership of the vehicle were not disputed. Medical documents, including a discharge summary and medical report, together with the Police Abstract, confirmed that he sustained injuries as a result of the accident involving the Respondent’s vehicle.
12. Accordingly, the Appellant submitted that there was no evidential basis for a finding of contributory negligence and that the trial magistrate erred in apportioning liability equally. He urged the appellate court to set aside the 50:50 apportionment and hold the Respondent wholly liable for the accident, arguing that the Respondent’s driver breached the duty of care expected of a reasonable and prudent motorist. In support of this argument, reliance was placed on Hellen Atieno Oduor v S S Mehta & Sons Ltd & Muthithu Nanua [2015] KEHC 6638 (KLR).
13. On the issue of special damages, the Appellant argued that the trial court erred by awarding only Kshs. 98,452 despite evidence showing special damages amounting to Kshs. 145,602.27. The Appellant submitted that receipts supporting the claimed amount were produced at trial and therefore the full sum should have been awarded. Reliance was placed on Rosemary Wanjiru Kungu v Elijah Macharia Githinji & another (2014) eKLR and Douglas Ooga Nyansimora v Sammy Mutunga Makau & another [2016] KEHC 1197 (KLR), which affirm the principle that special damages must not only be specifically pleaded but also strictly proved.
14. The Respondent in their submissions dated 5th November 2025 arguing that it is incompetent as it contravenes Section 38(1) of the Small Claims Court Act, which limits appeals from the Small Claims Court to matters of law only. The Respondent contended that the Memorandum of Appeal expressly alleges that the trial adjudicator erred in both law and fact, particularly regarding the apportionment of liability and the award of special damages. According to the Respondent, these are factual issues arising from the trial court’s assessment of evidence and witness credibility and are therefore not amenable to appellate review. Reliance was placed on Fidelity Insurance Company Ltd v Korir (Civil Appeal No. 13 of 2023) [2024] KEHC 3365 (KLR).
15. Without prejudice to that objection, the Respondent submitted that even if the appeal were found to raise points of law, it lacks merit. The Respondent noted that the proceedings before the Small Claims Court were conducted through documentary evidence and written submissions. Although a Police Abstract was produced, it merely indicated that the matter had been referred to insurance for civil remedy and did not attribute blame for the accident. The Respondent maintained that liability had been denied in the response to the claim and that, apart from the Appellant’s witness statement and the Police Abstract, no independent evidence was tendered to establish negligence on the part of the Respondent’s driver. Since neither party produced conclusive evidence regarding fault, the trial adjudicator properly apportioned liability equally between the parties. Reliance was placed on Ojwang & another v Kagunya (Civil Appeal No. 287 of 2023) [2025] KEHC 6153 (KLR).
16. On special damages, the Respondent submitted that the Appellant had specifically pleaded and prayed for Kshs. 98,452 in the Statement of Claim and was consequently awarded that exact amount. The Respondent argued that special damages must be specifically pleaded and strictly proved, and that parties are bound by their pleadings. It was further submitted that the Appellant had sought leave to amend the claim for special damages during the proceedings but, after being given the option either to withdraw the suit and file a fresh claim or proceed with the existing pleadings, elected to proceed without amendment. The Appellant could not therefore seek a higher amount on appeal contrary to the pleadings before the trial court.
17. Regarding general damages, the Respondent contended that the Appellant’s injuries consisted of a mild head injury, a scalp cut wound, a frontal-temporal-parietal haematoma, and blunt trauma to the left wrist and forearm. According to the medical report prepared by Dr. Kiema, the injuries were soft tissue in nature and were expected to heal without permanent disability. Relying on Francis Omari Ogaro v JAO (a minor suing through next friend and father God) [2021] KEHC 2358 (KLR), the Respondent argued that the injuries in the cited case were comparable, if not more severe, and that the award of Kshs. 350,000 was excessive. The Respondent therefore urged that the award be reduced to Kshs. 180,000.
18. Finally, on costs, the Respondent submitted that the trial adjudicator properly exercised the discretion conferred by Section 33 of the Small Claims Court Act in declining to award costs and directing each party to bear its own costs. The adjudicator provided reasons for that decision, and there was therefore no basis for appellate interference.
Analysis
19. The role of the first appellate court to reexamine and to reevaluate evidence to come up with its own findings was set out in Selle v Associated Motor Boat Co. (1968) E.A 123 as follows: -
“… Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect …”
20. I have considered the Record of Appeal dated 7th April 2025 and submissions by the parties. The issues for determination are: -
(a) Whether the appeal is competent under Section 38(1) of the Small Claims Court Act
(b) Whether the learned Adjudicator erred in apportioning liability at 50:50
(c) Whether the learned Adjudicator erred in awarding special damages of Kshs. 98,452
(d) Whether the award of general damages warrants interference
(e) Whether the court should interfere with the order on costs
21. On whether the appeal is competent under Section 38(1) of the Small Claims Court Act, the Respondent submitted that the appeal raises matters of fact contrary to Section 38(1) of the Small Claims Court Act which limits appeals to matters of law only.
22. This court agrees that appeals from the Small Claims Court lie only on matters of law. However, where it is alleged that the trial court misapprehended the legal burden of proof, applied the wrong legal principles in apportioning liability, or awarded damages contrary to settled legal principles, such complaints raise questions of law. In Fidelity Insurance Company Ltd v Korir [2024] KEHC 3365 (KLR), the court emphasized that: -
“I agree, as pronounced by the Court of Appeal in the case of Peter Gichuki King’ara Vs. IEBC & 2 Others, Nyeri Civil Appeal No. 31 of 2013, that the question whether the trial Court properly considered and/or evaluated the evidence on record and arrived at a correct determination supported by law and evidence is a question of law, and not fact. However, that statement cannot just be pasted in the ground of appeal and left at that. Some effort must be made in the drafting to indicate how and in what manner exactly the trial Court is being faulted for not properly considering and/or evaluating the evidence on record. That statement must also be construed within the context of the Small Claims Court Act, its aspirations, intentions and purpose. The Act was enacted to address a genuine concern and it is the duty of the Court to ensure that focus is not lost on such concern and that the mischief that the Act sought to cure remains within sight.”
23. This court is therefore satisfied that the appeal raises arguable questions of law and is properly before this court.
24. On whether the learned Adjudicator erred in apportioning liability at 50:50, the Appellant contended that he was a pedestrian and that the Police Abstract identified him as such. The Respondent, on the other hand, relied on a witness statement alleging that the Appellant was riding a bicycle and collided with the vehicle.
25. It is trite that a Police Abstract, while admissible evidence of the occurrence of an accident, is not conclusive proof of liability. Police abstract merely evidences the fact of an accident unless supported by further evidence establishing negligence. The court in Ojwang & another v Kagunya [2025] KEHC 6153 (KLR) held that: -
“… a police abstract cannot be used to determine that a party is to blame for the occurrence of an accident just because it indicates as much; as such, it was an error on the learned trial magistrate’s part to find that the appellants were liable for the accident, simply because the police abstract indicated so. The learned trial magistrate was therefore required to interrogate the evidence on record to determine who was liable for the occurrence of the accident.”
26. In the present matter, neither party produced a sketch plan, investigation file, police findings or independent witness evidence. The Police Abstract merely confirmed that an accident occurred involving the Appellant and motor vehicle registration number KYS 368 and that the matter was referred for civil remedy.
27. The burden of proving negligence rested upon the Appellant pursuant to Sections 107 and 108 of the Evidence Act. While the Appellant established the occurrence of the accident and the injuries sustained, there was insufficient evidence demonstrating precisely how the accident occurred and attributing fault exclusively to the Respondent.
28. The learned Adjudicator observed that each party blamed the other and that no conclusive police investigations were tendered. In circumstances where the evidence does not clearly establish fault, courts have often apportioned liability equally between the parties. The court in Hussein Omar Farah v Lento Agencies [2006] KECA 388 (KLR) held that: -
“Both parties insisted that the fault lay with the other side. As no side could establish the fault of the opposite party we would think that liability for the accident could be equally on both the drivers. We therefore hold each driver equally to blame.”
29. This court finds no error of law in the learned Adjudicator’s approach. The finding on liability at 50:50 was supported by the evidence presented and the applicable legal principles.
30. On whether the learned Adjudicator erred in awarding special damages of Kshs. 98,452, the Appellant contended that he produced receipts amounting to Kshs. 145,602.27 and therefore ought to have been awarded that amount.
31. The law is settled that special damages must not only be specifically pleaded but must also be strictly proved as held in Hahn v Singh [1985] KECA 129 (KLR).
32. The Statement of Claim specifically pleaded special damages of Kshs. 98,452. The record further shows that when the issue of amendment arose before the Small Claims Court, the Appellant elected to proceed with the claim as pleaded.
33. Parties are bound by their pleadings. The court cannot award more than what has been specifically pleaded regardless of the evidence tendered. This principle was reiterated in Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR). Consequently, the learned Adjudicator correctly awarded the pleaded sum of Kshs. 98,452.
34. On whether the award of general damages warrants interference, an appellate court will only interfere with an award of damages if it is shown that the trial court acted on wrong principles, took into account irrelevant factors, failed to consider relevant factors, or that the award is inordinately high or low. The court in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR) held that: -
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”
35. The injuries sustained by the Appellant were a mild head injury, scalp lacerations with haematoma and blunt trauma to the left wrist and forearm. The medical report indicated that the injuries were expected to heal without permanent disability.
36. Having considered the authorities cited by the parties, including Francis Omari Ogaro v JAO (Minor) [2021] KEHC 2358 (KLR), this court is not persuaded that the award of Kshs. 350,000 was either inordinately high or inordinately low as to warrant appellate interference. The award of general damages is therefore upheld.
37. On whether the court should interfere with the order on costs, costs are in the discretion of the court. Under Section 33 of the Small Claims Court Act, the Adjudicator has wide discretion regarding costs.
38. An appellate court will not interfere with the exercise of judicial discretion unless it is shown that the discretion was exercised capriciously, upon wrong principles or without regard to relevant considerations as held in Mbogo & another v Shah [1968] EA 93. The learned Adjudicator gave reasons for directing each party to bear its own costs. No basis has been demonstrated to justify interference with that exercise of discretion.
Determination
39. Accordingly, the court makes the following orders;
a. The appeal lacks merit and is hereby dismissed.
b. The judgment of the Small Claims Court delivered on 30th October 2024 is hereby upheld in its entirety.
c. Each party shall bear its own costs of the appeal.
Dated and delivered virtually at Mombasa this 25th day of June, 2026
………………………..
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of: -
Ms. Kihoro Advocate for the Appellant
Ms. Amarshi Advocate for the Respondent
Ms. Salwa, Court Assistant