Background:
1. This Appeal seeks set aside the Judgment of the small claims court rendered on 5th September 2023.The Judgement awarded the 1st Respondent herein, Anthony Muli Mulwa special damages of Kshs.276,484.oo. Liability was assessed at 50-50 between the Respondent and the third party.
2. The 1st Respondent sued the 2nd and 3rd Respondents seeking Kshs.276,484.00/=. Their case was that on or about 9th November 2019, the 1st Respondent was carefully driving motor vehicle KBP 186P along Mombasa Road when the 3rd Respondent’s driver /agent/servant recklessly drove, managed and or controlled motor vehicle KBU 869S that it lost control and he incurred great loss and damages. He supported his claim with documents listed on page 10 to 11 of the record of appeal including police abstract and fee note from the investigators.
3. The 2nd Respondent vide their response dated 1st December 2022 denied the claim and gave their side of the story to the effect that the accident was caused by Motor vehicle KAU 082G which was carelessly being driven and as a result it lost control and rammed into the 3rd Respondent’s motor vehicle which in turn rammed into the 1st Respondents motor vehicle hence KAU 082G was to blame for the accident.
4. A third-party notice was taken on the Appellant herein at the Trial Court, he filed a statement and responded to the claim.
Judgment of the Trial Court.
5. The Trial Court in its judgement faulted the Appellant and the 2nd and 3rd Respondents for failing to keep safe distance and were equally blamed for the accident. The Court apportioned liability at 50-50. The Trial Court found that the 1st Respondent have proved the special damages of Kshs.276,484.00 and the same were awarded.
The Appeal.
6. The Appellants herein aggrieved by the decision preferred an appeal to this Court seeking to set aside the judgement of the small claims court, the grounds of appeal in the memorandum of appeal dated 18th March 2024 are as follows:
(i) The Learned Magistrate erred in law and in fact in failing to resolve the issue of two contradictory police abstracts that was in connection in the Judgement delivered.
(ii) The Learned Magistrate erred in law and in fact by failing to consider the testimony of PC Joseph Wachira who testified that he did not know what the Appellant’s mistake.
(iii) The Learned Magistrate erred in law and in fact in failing to compel the production of police inspection report which was a key piece of evidence argued and pleaded by the Appellant
(iv) The Learned Magistrate erred in law and in fact in failing to consider the weight of the evidence.
(v) The Learned Magistrate erred in law and in fact by apportioning liability in the ratio of 50-50 between the Appellant and the 1st and 2nd Respondents
(vi) The Learned Magistrate erred in law and in fact by misdirecting herself on law and its application to the facts before her thereby arriving at manifestly unjust and unconscionable decision by failing to provide methodology, a legal basis and the legal principle applied in her award of Kshs.276,484.00/- to the 1st Respondent against the Appellant and the 1st and 2nd Respondent.
7. The Appellant prays that the judgment and the decree of the lower court dated 5th September 2023 be set aside. He also prays for costs.
The Submissions:
8. The Appeal proceeded by way of written submission,parties have filed the same supporting their cases.
Analysis of the issue for determination.
9. The jurisdiction of this Court to entertain appeals from the Small Claims Court is strictly circumscribed by Section 38 of the Small Claims Court Act and are limited to matters of law and the appeal is final. Having said so, since the instant appeal calls upon this Court to ascertain whether the trial Court properly handled the issue of burden of proof, then that is a matter of law.
10. The High Court is further duty-bound to assist the Small Claims Court realize it’s said objective and it ought to consider appeals from the said Court through those special lenses. From the above analysis, the main issue for determination is whether the Lower erred in its findings, answering this question will settle the dispute.
11. From the Appellant’s amended third-party statement at the Trial Court, he stated that he suddenly realized that there was a static motor vehicle registration KBU 896p. He suddenly hit the brakes but it was too late and he slightly hit motor vehicle KBU 896P from behind. When he alighted from the vehicle, he learnt that motor vehicle KBP 186P had hit motor vehicle KCW 082G from behind. Motor vehicle KBU 896P had hit motor vehicle registration KBP 168P from behind. He blamed the 1st Respondent and Appellant for suddenly stopping on a highway without cautioning other drivers.
12. From the proceedings, during the hearing PC Joseph Wachira testified about the accident. He informed Court that Motor vehicle KBU 062G was blamed for the accident and KBP 186P was blamed for failing to keep distance, this was from the OB he informed Court he had. He further informed court that KBU 896S and KBB 186P was also blamed. On cross examination by the Appellant’s counsel on page 162 of the record he informed court that there were two abstracts and relied on the one he was using. He confirmed that KAU was blamed but it was indicated why. From the Police abstract on page 16 of the record of appeal shows that motor vehicle KBU 869S was blamed for the accident.
13. The Appellant herein in his statement of response at the Trial Court faulted the 1st and 2nd Respondents for stopping at the highway leading to a mass collision of the four vehicles. During the hearing he testified that he blamed the driver of the Isuzu Lorry which was in front of him since it stopped suddenly on the road without indicating. It is my view that he ought to have made efforts to prove this position to enable the Trial Court exonerate him. The Court of Appeal captured the principle of ‘whoever asserts must prove’ in the case of Jennifer Nyambura Kamau vs Humphrey Mbaka Nandi [2013] eKLR as follows: -
“-----------section 107 of the Evidence Act provides that “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.” Section 109 stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence…”
14. The Trial Court having found that there were two police abstracts one blaming the Appellant and the other blamed the 2nd and 3rd Respondents. Went ahead to analyses the evidence and established that blame was on the Appellant and 2nd 3rd Respondents herein, the blame was based on the fact that they failed to keep distance to avoid hitting the vehicle in front hence found the equally liable.
15. The 2nd and 3rd Respondents in their submissions have gone to great height to give the background of the dispute at the Trial Court, they fault the Trial Court for apportioning liability the way it did, they have invited this Court to re-evaluate, re-assess and re-analyze the evidence. It is their arguments that the 2nd Respondent was an eye witness and give evidence should be given more weight. It was the 2nd Respondent’s testimony that he stopped at a safe distance and KAU Canter hit him from behind which pushed him to hi the Prado. On cross examination he informed Court that his vehicle was charged. He blamed the drover of Motor Vehicle KAM 082G.
16. After carefully analyzing the evidence and the whole record of appeal and considering the totality of the case, I see no fault in the Trial Court’s findings. I do not agree with the arguments raised in the memorandum of appeal.
17. Further an award of special damages must be proved. the 1st Respondent were able to prove the amounts pleaded in their claim at the Trial Court. They attached the receipt and evidence of incurring the cost. The Appellant in their memorandum of appeal faults the Trial Court for failing to provide a methodology and legal basis for the award. Court of appeal in Nkuene Dairy Farmers Co-op Society Ltd & another v Ngacha Ndeiya [2010] KECA 20 (KLR)held that;
“In our view special damages in material damage claim need not be shown to have actually been incurred. The Claimant is only required to show the extent of the damage and what it would cost to restore the damage item as near as possible to the condition it was before the damage complained of’’
18. It is my considered view that the 1st Respondent was able to demonstrate and prove their case on a balance of probability hence entitled to the special damages. This Court therefore finds no merit in the Appeal and proceeds to dismiss the same.
19. Judgement of the Trial Court is hereby affirmed. Each party will bear their costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 17th day of July 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
No appearance by parties
1. This Appeal seeks set aside the Judgment of the small claims court rendered on 5th September 2023.The Judgement awarded the 1st Respondent herein, Anthony Muli Mulwa special damages of Kshs.276,484.oo. Liability was assessed at 50-50 between the Respondent and the third party.
2. The 1st Respondent sued the 2nd and 3rd Respondents seeking Kshs.276,484.00/=. Their case was that on or about 9th November 2019, the 1st Respondent was carefully driving motor vehicle KBP 186P along Mombasa Road when the 3rd Respondent’s driver /agent/servant recklessly drove, managed and or controlled motor vehicle KBU 869S that it lost control and he incurred great loss and damages. He supported his claim with documents listed on page 10 to 11 of the record of appeal including police abstract and fee note from the investigators.
3. The 2nd Respondent vide their response dated 1st December 2022 denied the claim and gave their side of the story to the effect that the accident was caused by Motor vehicle KAU 082G which was carelessly being driven and as a result it lost control and rammed into the 3rd Respondent’s motor vehicle which in turn rammed into the 1st Respondents motor vehicle hence KAU 082G was to blame for the accident.
4. A third-party notice was taken on the Appellant herein at the Trial Court, he filed a statement and responded to the claim.
Judgment of the Trial Court.
5. The Trial Court in its judgement faulted the Appellant and the 2nd and 3rd Respondents for failing to keep safe distance and were equally blamed for the accident. The Court apportioned liability at 50-50. The Trial Court found that the 1st Respondent have proved the special damages of Kshs.276,484.00 and the same were awarded.
The Appeal.
6. The Appellants herein aggrieved by the decision preferred an appeal to this Court seeking to set aside the judgement of the small claims court, the grounds of appeal in the memorandum of appeal dated 18th March 2024 are as follows:
(i) The Learned Magistrate erred in law and in fact in failing to resolve the issue of two contradictory police abstracts that was in connection in the Judgement delivered.
(ii) The Learned Magistrate erred in law and in fact by failing to consider the testimony of PC Joseph Wachira who testified that he did not know what the Appellant’s mistake.
(iii) The Learned Magistrate erred in law and in fact in failing to compel the production of police inspection report which was a key piece of evidence argued and pleaded by the Appellant
(iv) The Learned Magistrate erred in law and in fact in failing to consider the weight of the evidence.
(v) The Learned Magistrate erred in law and in fact by apportioning liability in the ratio of 50-50 between the Appellant and the 1st and 2nd Respondents
(vi) The Learned Magistrate erred in law and in fact by misdirecting herself on law and its application to the facts before her thereby arriving at manifestly unjust and unconscionable decision by failing to provide methodology, a legal basis and the legal principle applied in her award of Kshs.276,484.00/- to the 1st Respondent against the Appellant and the 1st and 2nd Respondent.
7. The Appellant prays that the judgment and the decree of the lower court dated 5th September 2023 be set aside. He also prays for costs.
The Submissions:
8. The Appeal proceeded by way of written submission,parties have filed the same supporting their cases.
Analysis of the issue for determination.
9. The jurisdiction of this Court to entertain appeals from the Small Claims Court is strictly circumscribed by Section 38 of the Small Claims Court Act and are limited to matters of law and the appeal is final. Having said so, since the instant appeal calls upon this Court to ascertain whether the trial Court properly handled the issue of burden of proof, then that is a matter of law.
10. The High Court is further duty-bound to assist the Small Claims Court realize it’s said objective and it ought to consider appeals from the said Court through those special lenses. From the above analysis, the main issue for determination is whether the Lower erred in its findings, answering this question will settle the dispute.
11. From the Appellant’s amended third-party statement at the Trial Court, he stated that he suddenly realized that there was a static motor vehicle registration KBU 896p. He suddenly hit the brakes but it was too late and he slightly hit motor vehicle KBU 896P from behind. When he alighted from the vehicle, he learnt that motor vehicle KBP 186P had hit motor vehicle KCW 082G from behind. Motor vehicle KBU 896P had hit motor vehicle registration KBP 168P from behind. He blamed the 1st Respondent and Appellant for suddenly stopping on a highway without cautioning other drivers.
12. From the proceedings, during the hearing PC Joseph Wachira testified about the accident. He informed Court that Motor vehicle KBU 062G was blamed for the accident and KBP 186P was blamed for failing to keep distance, this was from the OB he informed Court he had. He further informed court that KBU 896S and KBB 186P was also blamed. On cross examination by the Appellant’s counsel on page 162 of the record he informed court that there were two abstracts and relied on the one he was using. He confirmed that KAU was blamed but it was indicated why. From the Police abstract on page 16 of the record of appeal shows that motor vehicle KBU 869S was blamed for the accident.
13. The Appellant herein in his statement of response at the Trial Court faulted the 1st and 2nd Respondents for stopping at the highway leading to a mass collision of the four vehicles. During the hearing he testified that he blamed the driver of the Isuzu Lorry which was in front of him since it stopped suddenly on the road without indicating. It is my view that he ought to have made efforts to prove this position to enable the Trial Court exonerate him. The Court of Appeal captured the principle of ‘whoever asserts must prove’ in the case of Jennifer Nyambura Kamau vs Humphrey Mbaka Nandi [2013] eKLR as follows: -
“-----------section 107 of the Evidence Act provides that “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.” Section 109 stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence…”
14. The Trial Court having found that there were two police abstracts one blaming the Appellant and the other blamed the 2nd and 3rd Respondents. Went ahead to analyses the evidence and established that blame was on the Appellant and 2nd 3rd Respondents herein, the blame was based on the fact that they failed to keep distance to avoid hitting the vehicle in front hence found the equally liable.
15. The 2nd and 3rd Respondents in their submissions have gone to great height to give the background of the dispute at the Trial Court, they fault the Trial Court for apportioning liability the way it did, they have invited this Court to re-evaluate, re-assess and re-analyze the evidence. It is their arguments that the 2nd Respondent was an eye witness and give evidence should be given more weight. It was the 2nd Respondent’s testimony that he stopped at a safe distance and KAU Canter hit him from behind which pushed him to hi the Prado. On cross examination he informed Court that his vehicle was charged. He blamed the drover of Motor Vehicle KAM 082G.
16. After carefully analyzing the evidence and the whole record of appeal and considering the totality of the case, I see no fault in the Trial Court’s findings. I do not agree with the arguments raised in the memorandum of appeal.
17. Further an award of special damages must be proved. the 1st Respondent were able to prove the amounts pleaded in their claim at the Trial Court. They attached the receipt and evidence of incurring the cost. The Appellant in their memorandum of appeal faults the Trial Court for failing to provide a methodology and legal basis for the award. Court of appeal in Nkuene Dairy Farmers Co-op Society Ltd & another v Ngacha Ndeiya [2010] KECA 20 (KLR)held that;
“In our view special damages in material damage claim need not be shown to have actually been incurred. The Claimant is only required to show the extent of the damage and what it would cost to restore the damage item as near as possible to the condition it was before the damage complained of’’
18. It is my considered view that the 1st Respondent was able to demonstrate and prove their case on a balance of probability hence entitled to the special damages. This Court therefore finds no merit in the Appeal and proceeds to dismiss the same.
19. Judgement of the Trial Court is hereby affirmed. Each party will bear their costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 17th day of July 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
No appearance by parties