REPUBLIC OF KENYA
IN THE HIGH COURT AT MACHAKOS
CIVIL APPEAL NO E112 OF 2024
DAVID MBAI KIWA ...............................................................................APPELLANT
VERSUS
MOHAMED MWAMBOA MWAKULOMBA .........................................RESPONDENT
JUDGEMENT
1. This appeal arises out of a claim in the Small Claims Court by the Respondent against the Appellant in which the Respondent sought for general and special damages as well as costs of the claim.
2. The Respondent’s case was that on or about 7 October 2023,he was lawfully travelling riding motor cycle registration number KMFW 413 W along Nairobi -Namanga Road when at Shalom Hospital area, the Respondent by himself, his driver, servant and /or agent drove, controlled and/or managed motor vehicle KCF 745P so negligently that he permitted the same to lose control while trying to make a U-turn on the right side without giving way to the other road users, occasioning with the Respondent’s motor cycle hence causing the accident as a result of which the Respondent was seriously injured.
3. The Appellant entered appearance and filed a Response denying the claim in toto and attributing the negligence to the Respondent. The Appellant denied his subject motor vehicle being at the area and road stated on the date and time when the alleged accident occurred.
4. In its judgement, the trial court identified the following issues for determination:
a) Who was liable for the accident?
b) What amount of quantum is awardable?
5. On who is liable for the accident, the trial court relied on the police abstract issued on 07/110/2023 which confirmed that an accident was reported at SOT Athi River and the Respondent was listed as the rider. Both the Respondent and the Appellant called witnesses who testified to support their respective cases. The trial court found the Respondent’s evidence to be plausible and that the Appellant failed to rebut the evidence on negligence and therefore the trial court held the Appellant 100% vicariously liable to blame for the accident.
6. On the issue of quantum of damages, the trial court considered the injuries sustained by the Respondent, the awards proposed by the Parties’ counsel as well as the receipts produced amounting to Kshs.5,550/= and proceeded to award the Respondent Kshs.460,000/= in general damages and Kshs.5,550/= in special damages totalling to Kshs.465,550/= plus costs and interest.
7. Being aggrieved by the judgement, the Appellant lodged an appeal vide a Memorandum of Appeal dated 31 May 2024 raising 8 grounds as follows:
a. THAT the Honorable Learned Magistrate erred in fact and in law in assessing liability at 100% for the Respondent against the Appellant.
b. THAT the learned trial magistrate erred in law and fact by totally disregarding the Appellant's Evidence in Chief on liability within the primary suit thereby arriving at an erroneous exercise in assessment of liability.
c. THAT the Honorable Learned Magistrate erred in fact and in law in awarding General damages to the Respondent amounting to Kshs. 460,000/=.
d. THAT the Honorable Learned Magistrate erred in fact and in law in awarding Special damages to the Respondent amounting to Kshs 5550/=.
e. THAT the assessment on liability against the Appellant is an erroneous estimate due regard to the circumstances of the case before the subordinate Court and weight of precedents in similar circumstances.
f. THAT the quantum of General & Special damages is excessive and an erroneous estimate of the damages awarded to the Respondent due regard to the circumstances of the case before the subordinate Court and weight of precedents in similar circumstances.
g. THAT the Honourable Magistrate erred in law and in facts in relying on extraneous evidence in arriving at the decision on Liability and Quantum.
h. THAT the Honourable Magistrate erred by applying the wrong principles in law thereby arriving at a wrong decision.
8. The Appellant prays for orders:
1. THAT the Appeal be allowed.
2. THAT the Honourable court be pleased to set aside the Judgement as was delivered and entered by Honourable B. A Luova in Machakos E017 of 2024 entirely.
3. THAT the Respondent does pay the costs of this Appeal and costs in the lower court.
4. THAT such further relief as may appear just to the honourable court.
9. The appeal was canvassed through written submissions.
Appellant’s submissions
10. The Appellant submitted that it is trite law that he who alleges must prove. Section 107 and 108 of the Evidence Act Chapter 80 states that;
107. Burden of proof
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact if is said that the burden of proof lies on that person.
108. Incidence of burden
11. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
12. The Appellant contends that the Respondent failed to discharge this duty on a balance of probabilities as he did not prove the involvement of Motor vehicle registration number KCF 745P within the said accident. That it is also clear during the hearing that the Respondent failed to rebut the overwhelming evidence which showed that Motor vehicle registration number KCF 745P was not involved within the accident. That the Respondent testified that after being allegedly hit by the said Motor vehicle, he was unconscious and couldn't properly articulate what was going on. He further confirmed during cross examination that there were no witnesses in court to confirm the occurrence of the said accident and that there were no photographs or sketches filed to ascertain the involvement and presence of Motor vehicle registration number KCF 745P at the scene of accident on 7th October 2024.
13. From the Statements by one John Muuo Mbai and the Representative investigator from sunrays investigations, it is noteworthy and quite evident that Motor vehicle registration number KCF 745P was not at the scene of accident when the accident occurred.
14. It was submitted that the essential element is that the mere fact of the happening of the accident should tell its own story so as to establish a prima facie case against the defendant. No form of negligence was illustrated or proven on the part of the Respondent as against the Appellant.
15. The Appellant also submitted that that Section 78(2) of the Civil Procedure Act, CAP 21, is applicable to the extent that it states that;
"Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted herein. "
16. The Appellant prasy that the court be pleased to set aside the Judgement as was delivered and entered by Hon. B.A Luova in MACHAKOS EOI 7 OF 2024 entirely that the Respondent does pay the costs of this Appeal and those of the trial court.
Respondent’s submissions
17. The Respondent submitted that as relates to liability, the Respondent availed 2 witnesses that is the Claimant and the Police Officer. The Police Officer, despite not being the investigating officer led evidence that confirmed occurrence of the accident. It is worth noting that the Occurrence Book record was filled immediately after the accident as 0B 11/7/10/2023. This evidence was not controverted.
18. The Respondent equally testified as to the circumstances of the accident and saliently, he averred that he saw both the motor vehicle and its registration number. He confirmed that he was not unconscious and as such aware of what was happening. He also indicated that after the accident, Police Officers who were present at the scene together with boda boda riders gave chase to the offending motor vehicle but they were not successful. The Respondent blamed the occurrence of the accident on the driver of motor vehicle registration number KCF 745P as he negligently made a U-turn on the highway.
19. On the other hand, the Appellant availed 2 witnesses that is the investigator and the turn boy of the motor vehicle to testify on the limb of liability.
20. The investigator, alleged that this was a case of mistaken identity and that the motor vehicle registration number KCF 745P had passed by the accident scene earlier and not the indicated time. No evidence of this allegation was tendered. The investigator averred that he interacted with the investigating officer, PC Barnabas Too, however no statement was recorded with the said police officer. The investigator's evidence was largely hear-say.
21. The turn boy, who is a son of the Appellant, had no evidence of being in the motor vehicle at any time. He alleged that the motor vehicle was parked at Mlolongo at the time of the accident. When pressed to avail proof of the same, he was at a loss. He could not produce a register recording the time of arrival and departure from the parking lot despite indicating that the same existed. Importantly, the turn boy acknowledged that the motor vehicle had a dent on the front bumper consistent with the accident as narrated by the Respondent. On being pressed on the same, he averred that it was as a result of an earlier accident at the quarry. He, however, did not produce any evidence of the said accident.
22. That from the foregoing setting out of the facts, the following inferences are apparent:-
a) The occurrence of the accident was recorded by the Police on the same day it occurred as 0B 11/7/10/2023. The occurrence of the accident was proved by way of documents and the same was not dislodged by the Appellant.
b) The Respondent could identify the motor vehicle following the accident together with the registration number thereof. He could also tell that after the driver of motor vehicle registration number KCF 745P ran away after the accident, the Police and 'boda boda' riders gave chase to no avail.
c) The driver of motor vehicle registration number KCF 745P was neither interviewed by the investigator nor was he availed in court to testify. His absence was never explained. He was in charge of the motor vehicle. He could tell, from his perspective, what happened. The Respondent invited the court to draw a negative inference from the absence of the driver.
d) There was a dent on the motor vehicle consistent with the occurrence of the accident. The Appellant's son, tried to explain that the same was pursuant to a prior accident that he did not have evidence of.
e) There was no record of the motor vehicle being parked at MIolongo as alleged by the turn boy who is the Appellant's son.
23. The Respondent submitted that the preponderance of evidence points to the conclusion that the accident happened as averred by the Respondent and the Appellant is wholly liable for the same.
Analysis and Determination
24. This being an appeal from the Small Claims Court, the jurisdiction of the Court is circumscribed in section 38 of the Small Claims Court Act. Section 38 of the Small Claims Court Act provides as follows:
1. A person aggrieved by the decision or an order of the Court may appeal against that decision or an order to the High Court on matters of law.
2. An appeal from any decision or order referred to in sub section (1) shall be final.
25. The above provision means that this Court can only intervene if the evidence on record does not reasonably support the conclusions made by the trial court. More specifically, an appeal before this Court is essentially limited to points of law. In the case of Mwita v Woodventure (K) Limited & another (Civil Appeal 58 of 2017) [2022] KECA 628 (KLR) (8 July 2022) (Judgment), the Court of Appeal stated:
“This is a second appeal. Accordingly, the jurisdiction of this Court is limited to consideration of matters of law. As was held in the case of Stanley N. Muriithi & Another v Bernard Munene Ithiga [2016] eKLR, on a second appeal, the Court confines itself to matters of law only, unless it is shown that the court below considered matters it should not have considered, or failed to consider matters it should have considered, or looking at the entire decision, it is perverse. See also Kenya Breweries Limited v Godfrey Odoyo [2010] eKLR in which it was held that: “In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters, they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.”
26. I have carefully read the Record of Appeal, the grounds of appeal and rival submissions by the parties. The pertinent issue for determination herein is whether this court should allow the appeal and set aside the trial court’s judgement.
27. As regards liability, I have considered that proceedings before the trial court and the analysis by the trial court which noted that from the totality of the evidence adduced, there is no doubt that the Appellant’s motor vehicle registration number KCF 745P was negligent hence the reason as to why the accident occurred. I wish to clarify that from the trial court proceedings, the Respondent who testified as PW3 when cross examined, he stated categorically that after being hit, he fell down and could see what was happening. He was conscious because he saw the vehicle which was a tipper type of motor vehicle. The vehicle was yellowish on the body but the driver’s cabin was white.....After the accident he was taken to Shallom Hospital for first aid and thereafter he was referred to Machakos Level5 hospital. He was not unconscious after the accident.
28. On quantum, I am aware that for an Appellant Court to interfere with an award of damages, it must be shown that the trial court in awarding damages, took into consideration an irrelevant fact or the sum awarded is inordinately low or too high that it must be a wholly erroneous estimate of the damage, or it should be established that the wrong principle of law was applied.
29. In the case of Maraga V Musila (1984) 1 KLR 251, the Court of Appeal when addressing its mind to this issue expressed itself thus;
“The assessment of damages is more like an exercise of discretion and an appellate court is slow to reverse a lower court on the question of the amount of damages unless it is satisfied that the judge acted on a wrong principle of law or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. The question is not what the appellate court would award but whether the lower judge acted on the wrong principles”.
30. The issues raised in the Appellant’s appeal are on point of facts on liability and quantum and not of law, this Court is not empowered to sit on appeal on the same. In addressing a point of law and point of fact, in the case of J N & 5 Others -vs- Board of Management, St. G School Nairobi & Another [2017] eKLR, Justice Mativo stated thus:
“In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence as well as inferences arising from those facts. In law, a question of fact, also known as a point of fact, is a question that must be answered by reference to facts and evidence as well as inferences arising from those facts. Such a question is distinct from a question of law, which must be answered by applying relevant legal principles. The answer to a question of fact (a "finding of fact") usually depends on particular circumstances or factual situations.”
31. This Court finds that the trial court did not err on any points of law.
32. Based on the foregoing, the appeal does not succeed. The same is dismissed with costs to the Respondent assessed at Kshs.30,000/=
JUDGEMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 2ND FEBUARY 2026
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 3RD FEBUARY 2026
IN THE HIGH COURT AT MACHAKOS
CIVIL APPEAL NO E112 OF 2024
DAVID MBAI KIWA ...............................................................................APPELLANT
VERSUS
MOHAMED MWAMBOA MWAKULOMBA .........................................RESPONDENT
JUDGEMENT
1. This appeal arises out of a claim in the Small Claims Court by the Respondent against the Appellant in which the Respondent sought for general and special damages as well as costs of the claim.
2. The Respondent’s case was that on or about 7 October 2023,he was lawfully travelling riding motor cycle registration number KMFW 413 W along Nairobi -Namanga Road when at Shalom Hospital area, the Respondent by himself, his driver, servant and /or agent drove, controlled and/or managed motor vehicle KCF 745P so negligently that he permitted the same to lose control while trying to make a U-turn on the right side without giving way to the other road users, occasioning with the Respondent’s motor cycle hence causing the accident as a result of which the Respondent was seriously injured.
3. The Appellant entered appearance and filed a Response denying the claim in toto and attributing the negligence to the Respondent. The Appellant denied his subject motor vehicle being at the area and road stated on the date and time when the alleged accident occurred.
4. In its judgement, the trial court identified the following issues for determination:
a) Who was liable for the accident?
b) What amount of quantum is awardable?
5. On who is liable for the accident, the trial court relied on the police abstract issued on 07/110/2023 which confirmed that an accident was reported at SOT Athi River and the Respondent was listed as the rider. Both the Respondent and the Appellant called witnesses who testified to support their respective cases. The trial court found the Respondent’s evidence to be plausible and that the Appellant failed to rebut the evidence on negligence and therefore the trial court held the Appellant 100% vicariously liable to blame for the accident.
6. On the issue of quantum of damages, the trial court considered the injuries sustained by the Respondent, the awards proposed by the Parties’ counsel as well as the receipts produced amounting to Kshs.5,550/= and proceeded to award the Respondent Kshs.460,000/= in general damages and Kshs.5,550/= in special damages totalling to Kshs.465,550/= plus costs and interest.
7. Being aggrieved by the judgement, the Appellant lodged an appeal vide a Memorandum of Appeal dated 31 May 2024 raising 8 grounds as follows:
a. THAT the Honorable Learned Magistrate erred in fact and in law in assessing liability at 100% for the Respondent against the Appellant.
b. THAT the learned trial magistrate erred in law and fact by totally disregarding the Appellant's Evidence in Chief on liability within the primary suit thereby arriving at an erroneous exercise in assessment of liability.
c. THAT the Honorable Learned Magistrate erred in fact and in law in awarding General damages to the Respondent amounting to Kshs. 460,000/=.
d. THAT the Honorable Learned Magistrate erred in fact and in law in awarding Special damages to the Respondent amounting to Kshs 5550/=.
e. THAT the assessment on liability against the Appellant is an erroneous estimate due regard to the circumstances of the case before the subordinate Court and weight of precedents in similar circumstances.
f. THAT the quantum of General & Special damages is excessive and an erroneous estimate of the damages awarded to the Respondent due regard to the circumstances of the case before the subordinate Court and weight of precedents in similar circumstances.
g. THAT the Honourable Magistrate erred in law and in facts in relying on extraneous evidence in arriving at the decision on Liability and Quantum.
h. THAT the Honourable Magistrate erred by applying the wrong principles in law thereby arriving at a wrong decision.
8. The Appellant prays for orders:
1. THAT the Appeal be allowed.
2. THAT the Honourable court be pleased to set aside the Judgement as was delivered and entered by Honourable B. A Luova in Machakos E017 of 2024 entirely.
3. THAT the Respondent does pay the costs of this Appeal and costs in the lower court.
4. THAT such further relief as may appear just to the honourable court.
9. The appeal was canvassed through written submissions.
Appellant’s submissions
10. The Appellant submitted that it is trite law that he who alleges must prove. Section 107 and 108 of the Evidence Act Chapter 80 states that;
107. Burden of proof
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact if is said that the burden of proof lies on that person.
108. Incidence of burden
11. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
12. The Appellant contends that the Respondent failed to discharge this duty on a balance of probabilities as he did not prove the involvement of Motor vehicle registration number KCF 745P within the said accident. That it is also clear during the hearing that the Respondent failed to rebut the overwhelming evidence which showed that Motor vehicle registration number KCF 745P was not involved within the accident. That the Respondent testified that after being allegedly hit by the said Motor vehicle, he was unconscious and couldn't properly articulate what was going on. He further confirmed during cross examination that there were no witnesses in court to confirm the occurrence of the said accident and that there were no photographs or sketches filed to ascertain the involvement and presence of Motor vehicle registration number KCF 745P at the scene of accident on 7th October 2024.
13. From the Statements by one John Muuo Mbai and the Representative investigator from sunrays investigations, it is noteworthy and quite evident that Motor vehicle registration number KCF 745P was not at the scene of accident when the accident occurred.
14. It was submitted that the essential element is that the mere fact of the happening of the accident should tell its own story so as to establish a prima facie case against the defendant. No form of negligence was illustrated or proven on the part of the Respondent as against the Appellant.
15. The Appellant also submitted that that Section 78(2) of the Civil Procedure Act, CAP 21, is applicable to the extent that it states that;
"Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted herein. "
16. The Appellant prasy that the court be pleased to set aside the Judgement as was delivered and entered by Hon. B.A Luova in MACHAKOS EOI 7 OF 2024 entirely that the Respondent does pay the costs of this Appeal and those of the trial court.
Respondent’s submissions
17. The Respondent submitted that as relates to liability, the Respondent availed 2 witnesses that is the Claimant and the Police Officer. The Police Officer, despite not being the investigating officer led evidence that confirmed occurrence of the accident. It is worth noting that the Occurrence Book record was filled immediately after the accident as 0B 11/7/10/2023. This evidence was not controverted.
18. The Respondent equally testified as to the circumstances of the accident and saliently, he averred that he saw both the motor vehicle and its registration number. He confirmed that he was not unconscious and as such aware of what was happening. He also indicated that after the accident, Police Officers who were present at the scene together with boda boda riders gave chase to the offending motor vehicle but they were not successful. The Respondent blamed the occurrence of the accident on the driver of motor vehicle registration number KCF 745P as he negligently made a U-turn on the highway.
19. On the other hand, the Appellant availed 2 witnesses that is the investigator and the turn boy of the motor vehicle to testify on the limb of liability.
20. The investigator, alleged that this was a case of mistaken identity and that the motor vehicle registration number KCF 745P had passed by the accident scene earlier and not the indicated time. No evidence of this allegation was tendered. The investigator averred that he interacted with the investigating officer, PC Barnabas Too, however no statement was recorded with the said police officer. The investigator's evidence was largely hear-say.
21. The turn boy, who is a son of the Appellant, had no evidence of being in the motor vehicle at any time. He alleged that the motor vehicle was parked at Mlolongo at the time of the accident. When pressed to avail proof of the same, he was at a loss. He could not produce a register recording the time of arrival and departure from the parking lot despite indicating that the same existed. Importantly, the turn boy acknowledged that the motor vehicle had a dent on the front bumper consistent with the accident as narrated by the Respondent. On being pressed on the same, he averred that it was as a result of an earlier accident at the quarry. He, however, did not produce any evidence of the said accident.
22. That from the foregoing setting out of the facts, the following inferences are apparent:-
a) The occurrence of the accident was recorded by the Police on the same day it occurred as 0B 11/7/10/2023. The occurrence of the accident was proved by way of documents and the same was not dislodged by the Appellant.
b) The Respondent could identify the motor vehicle following the accident together with the registration number thereof. He could also tell that after the driver of motor vehicle registration number KCF 745P ran away after the accident, the Police and 'boda boda' riders gave chase to no avail.
c) The driver of motor vehicle registration number KCF 745P was neither interviewed by the investigator nor was he availed in court to testify. His absence was never explained. He was in charge of the motor vehicle. He could tell, from his perspective, what happened. The Respondent invited the court to draw a negative inference from the absence of the driver.
d) There was a dent on the motor vehicle consistent with the occurrence of the accident. The Appellant's son, tried to explain that the same was pursuant to a prior accident that he did not have evidence of.
e) There was no record of the motor vehicle being parked at MIolongo as alleged by the turn boy who is the Appellant's son.
23. The Respondent submitted that the preponderance of evidence points to the conclusion that the accident happened as averred by the Respondent and the Appellant is wholly liable for the same.
Analysis and Determination
24. This being an appeal from the Small Claims Court, the jurisdiction of the Court is circumscribed in section 38 of the Small Claims Court Act. Section 38 of the Small Claims Court Act provides as follows:
1. A person aggrieved by the decision or an order of the Court may appeal against that decision or an order to the High Court on matters of law.
2. An appeal from any decision or order referred to in sub section (1) shall be final.
25. The above provision means that this Court can only intervene if the evidence on record does not reasonably support the conclusions made by the trial court. More specifically, an appeal before this Court is essentially limited to points of law. In the case of Mwita v Woodventure (K) Limited & another (Civil Appeal 58 of 2017) [2022] KECA 628 (KLR) (8 July 2022) (Judgment), the Court of Appeal stated:
“This is a second appeal. Accordingly, the jurisdiction of this Court is limited to consideration of matters of law. As was held in the case of Stanley N. Muriithi & Another v Bernard Munene Ithiga [2016] eKLR, on a second appeal, the Court confines itself to matters of law only, unless it is shown that the court below considered matters it should not have considered, or failed to consider matters it should have considered, or looking at the entire decision, it is perverse. See also Kenya Breweries Limited v Godfrey Odoyo [2010] eKLR in which it was held that: “In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters, they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.”
26. I have carefully read the Record of Appeal, the grounds of appeal and rival submissions by the parties. The pertinent issue for determination herein is whether this court should allow the appeal and set aside the trial court’s judgement.
27. As regards liability, I have considered that proceedings before the trial court and the analysis by the trial court which noted that from the totality of the evidence adduced, there is no doubt that the Appellant’s motor vehicle registration number KCF 745P was negligent hence the reason as to why the accident occurred. I wish to clarify that from the trial court proceedings, the Respondent who testified as PW3 when cross examined, he stated categorically that after being hit, he fell down and could see what was happening. He was conscious because he saw the vehicle which was a tipper type of motor vehicle. The vehicle was yellowish on the body but the driver’s cabin was white.....After the accident he was taken to Shallom Hospital for first aid and thereafter he was referred to Machakos Level5 hospital. He was not unconscious after the accident.
28. On quantum, I am aware that for an Appellant Court to interfere with an award of damages, it must be shown that the trial court in awarding damages, took into consideration an irrelevant fact or the sum awarded is inordinately low or too high that it must be a wholly erroneous estimate of the damage, or it should be established that the wrong principle of law was applied.
29. In the case of Maraga V Musila (1984) 1 KLR 251, the Court of Appeal when addressing its mind to this issue expressed itself thus;
“The assessment of damages is more like an exercise of discretion and an appellate court is slow to reverse a lower court on the question of the amount of damages unless it is satisfied that the judge acted on a wrong principle of law or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. The question is not what the appellate court would award but whether the lower judge acted on the wrong principles”.
30. The issues raised in the Appellant’s appeal are on point of facts on liability and quantum and not of law, this Court is not empowered to sit on appeal on the same. In addressing a point of law and point of fact, in the case of J N & 5 Others -vs- Board of Management, St. G School Nairobi & Another [2017] eKLR, Justice Mativo stated thus:
“In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence as well as inferences arising from those facts. In law, a question of fact, also known as a point of fact, is a question that must be answered by reference to facts and evidence as well as inferences arising from those facts. Such a question is distinct from a question of law, which must be answered by applying relevant legal principles. The answer to a question of fact (a "finding of fact") usually depends on particular circumstances or factual situations.”
31. This Court finds that the trial court did not err on any points of law.
32. Based on the foregoing, the appeal does not succeed. The same is dismissed with costs to the Respondent assessed at Kshs.30,000/=
JUDGEMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 2ND FEBUARY 2026
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 3RD FEBUARY 2026