Background
1. This is an Appeal from the decision of the Small Claims Court delivered on 23rd November 2023 in the Milimani SCC No. E3811 OF 2023 in which the Appellant had sued the Respondent seeking damages for injuries suffered in a road traffic accident which occurred on 22nd June 2023 along Langata Road.
2. The Appellant’s claim at the lower court was that while riding his motor cycle registration number KMEH 562H he was hit by the 1st Respondent’s motor vehicle registration No. KBH 071D, Nissan Matatu, then being driven 2nd Respondent.
3. On 23rd November 2023, the trial court rendered its judgment in the dispute in favour of Appellant in the following terms; -
a) Liability at 50.50 ratio
b) General damages at Kshs. 200,000/-
c) Special damages of Kshs. 18,800/-
Total Kshs. 218,800
Less 50% Kshs. 109,400
Net Award Kshs. 109,400
d) Costs of the suit
The Appeal
4. Dissatisfied with the decision of the trial court, the Appellant lodged this appeal raising four grounds of appeal against the judgement. A perusal of the grounds of appeal, which I need not reproduce here, reveals that the appeal is solely against the trial court’s finding on liability and apportionment thereof.
Submissions
5. The appeal was canvassed by way of written submissions. The Appellant’s filed their submissions dated 17th May 2024 whilst the Respondents filed theirs dated 12th June 2024.
6. In his submissions, the Appellant challenged the apportionment of liability between him and the Respondent in the ratio of 50:50 by the Hon. Adjudicator. According to the Appellant, this finding was against the weight of evidence presented by the Appellant before the trial court and the established precedence in similar cases.
7. The Appellant submitted that his evidence at trial was that on 22nd June 2023, he was along Langata Road, lawfully and carefully riding his motor cycle registration number KMEH 562K when the 2nd Respondent, driving motor vehicle registration number KBH 071D-Nissam Matatu, negligently and recklessly made an illegal U-turn, consequently ramming into the Appellant’s motor cycle, thereby causing the accident.
8. It was further the Appellant’s submissions that his testimony was corroborated by the evidence the police officer, No. 76448 PC Ignatius Kiplangat of Langata Police Sation who testified as CW1 and stated that he visited the scene of the accident and confirmed that it was the 2nd Respondent to blame for the occurrence of the accident.
9. According to the Appellant, the evidence of the police officer was further corroborated by the police abstract dated 27th June 2023 which blamed the 2nd Respondent for the accident. That the police abstract was produced at trial as Exhibit 1 and duly admitted.
10. The appellant took issue with the trial court’s finding that there was no clarity of how the accident happened since CW1, the police officer did not bring any other evidence to corroborate his view on liability and how he ended up blaming the 2nd Respondent for the accident.
11. On the other hand, the Respondent submitted that the finding by the trial court on liability was reasonable and in accordance with the evidence submitted at trial by both parties. The Respondent maintained that the Appellant did not prove any negligence against the 2nd Respondent to the standards required under Section 107 of the evidence Act.
12. Citing the decision in Bwire v Wayo Sailoki (Civil Appeal 032 of 2021) [2022] KEHC 7 9KLR0 (24 January 2022 (Judgment) the Respondent asserted that the Appellant did not prove their case on a balance of probability since there was no eye witness who witnessed the accident.
13. The Respondents therefore urged this court to dismiss the appeal and uphold the trial court’s apportionment of liability in the ratio of 50:50. Further, the Respondent prayed that the trial court’s award of general damages also be upheld.
Analysis and determination
14. This is an appeal emanating from the Small Claims Court pursuant to section 38 of the Small Claims Court Act which provides as follows; -
“(1)A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.
(2) An appeal from any decision or order referred to in subsection (1) shall be final.”
15. It therefore follows that in appeals originating from the Small Claims Court, this court can only entertain appeals limited to points of law in terms of Section 38(1) of the Small Claims Act. Consequently, the trial court’s findings on factual issues are to be accepted by this court unless it is demonstrated to this court that the trial court’s conclusions on those facts are so perverse as to warrant the attention of this court, exercising its appellate jurisdiction under the Act.
16. The duty of this court when dealing with appeals from the Small Claims Court under Section 38 of the Act is equivalent to that of the Court of Appeal when dealing with a matter on a second appeal. In Kenya Breweries Ltd v Godfrey Odoyo [2010] eKLR the Court of Appeal distinguished between matters of law and matters of fact as follows: -
“First, this is a second appeal. In a first appeal the appellate court is by law enjoined to revisit the evidence that was before the trial court and analyse it, evaluate it and come to its own independent conclusion. In other words, a first appeal is by way of a retrial and facts must be revisited and analysed a fresh, - see Selle and Another vs. Associated Motor Boat Company Ltd and Others (1968) EA 123. 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.” [Empasis added)
17. Again, in Charles Kipkoech Leting v Express (K) Ltd & another [2018] eKLR the Court of Appeal further clarified that where a right of appeal is confined to questions of law only, an appellate court is duty bound to accept the findings of fact by the lower court. That the court should not interfere with the findings of the trial on the factual issues unless it is apparent that, based on the evidence on record, no reasonable tribunal or court could have reached the same conclusion, in which case, the holding or decision would be bad in law and therefore qualify to be reviewed on a second appeal. The court stated that; -
“This is a second appeal. Our mandate is as has been enunciated in a long line of cases decided by the Court. See Maina versus Mugiria [1983] KLR 78, Kenya Breweries Ltd versus Godfrey Odongo, Civil Appeal No. 127 of 2007, and Stanley N. Muriithi & Another versus Bernard Munene Ithiga [2016] eKLR, for the holdings inter alia that, on a second appeal, the Court confines itself to matters of law only, unless it is shown that the 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. See also the English case of Martin versus Glywed Distributors Ltd (t/a MBS Fastenings) 1983 ICR 511 where in, it was held inter alia that, where a right of appeal is confined to questions of law only, 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 and law, and, it should not interfere with the decisions of the trial or first appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law.”
18. I have considered memorandum of appeal, the evidence on record and the rival submissions by the parties and note that the instant appeal is solely on the issue of trial court’s finding on liability. The first duty of this court will therefore to determine whether the issue as raised in the appeal is one of law, to which this court will have jurisdiction, or one of fact, to which this court will be bound by the finding of the trial court and therefore beyond the powers of this court, exercising its appellate jurisdiction under the Act.
19. From the evidence on record, it is clear that in reaching its conclusion on the issue of liability, the trial court considered purely factual issues. The trial court considered the evidence tendered by both parties at trial and came to a conclusion that the appellant had proved to the required standard that the accident happened and that the Appellant was partially liable to the occurrence of the accident.
20. Having established that the determination by the trial court on the issue of liability was purely a factual one, the next step for this court is to examine and determine whether the trial court’s finding on those factual issues, based on the evidence on record, are so unreasonable within the principles set out by the Court of Appeal in the case of Kenya Breweries Ltd v Godfrey Odoyo (supra) to warrant the attention of this court, exercising its appellate jurisdiction under section 38(1) of the Small Claims Court Act.
21. This court notes that in apportioning liability in the ratio 50:50 between the Appellant and the Respondent, the trial court placed reliance on the fact that police officer No. 76448 PC Ignatius Kiplangat of Langata Police Sation who testified as CW1 and blamed the 2nd Respondent for the accident, did not actually witness the accident happen.
22. The trial court stated in its decision that from the evidence, the police officer arrived at the scene ten minutes after the occurrence of the accident and therefore his testimony on who to blame for the accident was doubtful, particularly taking into account that he did not bring any independent evidence to show that the 2nd Respondent was actually to blame for the accident.
23. The trial court concluded in its decision that due to lack of clarity of evidence as to who actually was to blame for the accident, the court was in doubt and consequently apportioned liability in the ratio of 50:50 between the Appellant and the Respondent.
24. I have reviewed the proceedings and noted that the Appellant called three witnesses in support of his case. I also note that the Respondents closed their case without calling any witness.
25. From the proceedings, I note that the Appellant testified as CW2 and adopted his witness statement dated 3rd July 2023 as evidence before the trial court. In his statement he narrated how the accident happened and blamed the 2nd Respondent for the accident. Further, No. 76448 PC Ignatius Kiplangat of Langata Police Sation also testified as CW1 and stated that he was the investigating officer and that he visited the scene immediately after he had been notified of the accident. That from his investigations, it was the 2nd Respondent who was to blame for the accident. That he subsequently issued a police abstract dated 27th June 2023 to the Appellant in that regard.
26. Having reviewed the evidence submitted by the Appellant in support of his case, and taking note that the Respondents did not adduce any evidence to the contrary, I find that the conclusion by the Hon. Adjudicator of apportioning liability between the Appellant and the Respondent in the ration of 50:50 was perverse and therefore bad in law as to warrant the attention of this court exercising its appellate jurisdiction under section 38 of the Small Claims Court Act.
27. It is evident from the record of appeal that apart from the general denials in their defence denying liability, the Respondents closed their case without calling any witness and did not therefore lead any evidence to challenge the Appellant’s account of how the accident happened.
28. In Moses Gichigi Githiru v Paddy Distributors Limited & another [2021] eKLR when faced with a substantially similar appeal on the issue of liability, the court stated as follows; -
“20. There was no evidence from the respondents to the contrary. There was therefore no reason to doubt what the appellant was stating to the court. Mere denial in the statement of defence is not sufficient. It must be followed by hard evidence…….
22. The details of the police abstract on the face of it blames the respondents for the accident despite the same pending under investigations. The production of the said abstract as a piece of evidence by consent in my view lends credence to the fact that the accident was solely caused by the respondent’s negligence.
23. In the premises, this court faults the holding by the trial court that the appellant contributed partially to the accident. He had nothing to do with it. It was the respondents who ought to have been careful and ensure that he kept safe and reasonable distance between him and the motorist ahead. I therefore find the respondents 100% liable for the accident.”
29. In this case, there was no single evidence on record adduced by the Respondents disputing the Appellant’s account of how the accident happened. The driver of the subject vehicle who was present at the scene when the accident happened was not called as witness by the Respondents.
30. Accordingly, I find that the holding by the trial court that the Appellant was partially liable for the accident to be erroneous in law and against the evidence on record.
31. For the reasons set out above, the appeal herein succeeds. Consequently, the trial court’s Judgment of 23rd November 2023 is here varied to the extent that the Respondent is wholly found liable for the accident. the rest of the orders are maintained.
32. The Respondent shall bear the cost of this appeal.
33. It so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS 6TH DAY OF AUGUST 2024
ADO MOSES
JUDGE
Moses – Court Assistant
1. This is an Appeal from the decision of the Small Claims Court delivered on 23rd November 2023 in the Milimani SCC No. E3811 OF 2023 in which the Appellant had sued the Respondent seeking damages for injuries suffered in a road traffic accident which occurred on 22nd June 2023 along Langata Road.
2. The Appellant’s claim at the lower court was that while riding his motor cycle registration number KMEH 562H he was hit by the 1st Respondent’s motor vehicle registration No. KBH 071D, Nissan Matatu, then being driven 2nd Respondent.
3. On 23rd November 2023, the trial court rendered its judgment in the dispute in favour of Appellant in the following terms; -
a) Liability at 50.50 ratio
b) General damages at Kshs. 200,000/-
c) Special damages of Kshs. 18,800/-
Total Kshs. 218,800
Less 50% Kshs. 109,400
Net Award Kshs. 109,400
d) Costs of the suit
The Appeal
4. Dissatisfied with the decision of the trial court, the Appellant lodged this appeal raising four grounds of appeal against the judgement. A perusal of the grounds of appeal, which I need not reproduce here, reveals that the appeal is solely against the trial court’s finding on liability and apportionment thereof.
Submissions
5. The appeal was canvassed by way of written submissions. The Appellant’s filed their submissions dated 17th May 2024 whilst the Respondents filed theirs dated 12th June 2024.
6. In his submissions, the Appellant challenged the apportionment of liability between him and the Respondent in the ratio of 50:50 by the Hon. Adjudicator. According to the Appellant, this finding was against the weight of evidence presented by the Appellant before the trial court and the established precedence in similar cases.
7. The Appellant submitted that his evidence at trial was that on 22nd June 2023, he was along Langata Road, lawfully and carefully riding his motor cycle registration number KMEH 562K when the 2nd Respondent, driving motor vehicle registration number KBH 071D-Nissam Matatu, negligently and recklessly made an illegal U-turn, consequently ramming into the Appellant’s motor cycle, thereby causing the accident.
8. It was further the Appellant’s submissions that his testimony was corroborated by the evidence the police officer, No. 76448 PC Ignatius Kiplangat of Langata Police Sation who testified as CW1 and stated that he visited the scene of the accident and confirmed that it was the 2nd Respondent to blame for the occurrence of the accident.
9. According to the Appellant, the evidence of the police officer was further corroborated by the police abstract dated 27th June 2023 which blamed the 2nd Respondent for the accident. That the police abstract was produced at trial as Exhibit 1 and duly admitted.
10. The appellant took issue with the trial court’s finding that there was no clarity of how the accident happened since CW1, the police officer did not bring any other evidence to corroborate his view on liability and how he ended up blaming the 2nd Respondent for the accident.
11. On the other hand, the Respondent submitted that the finding by the trial court on liability was reasonable and in accordance with the evidence submitted at trial by both parties. The Respondent maintained that the Appellant did not prove any negligence against the 2nd Respondent to the standards required under Section 107 of the evidence Act.
12. Citing the decision in Bwire v Wayo Sailoki (Civil Appeal 032 of 2021) [2022] KEHC 7 9KLR0 (24 January 2022 (Judgment) the Respondent asserted that the Appellant did not prove their case on a balance of probability since there was no eye witness who witnessed the accident.
13. The Respondents therefore urged this court to dismiss the appeal and uphold the trial court’s apportionment of liability in the ratio of 50:50. Further, the Respondent prayed that the trial court’s award of general damages also be upheld.
Analysis and determination
14. This is an appeal emanating from the Small Claims Court pursuant to section 38 of the Small Claims Court Act which provides as follows; -
“(1)A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.
(2) An appeal from any decision or order referred to in subsection (1) shall be final.”
15. It therefore follows that in appeals originating from the Small Claims Court, this court can only entertain appeals limited to points of law in terms of Section 38(1) of the Small Claims Act. Consequently, the trial court’s findings on factual issues are to be accepted by this court unless it is demonstrated to this court that the trial court’s conclusions on those facts are so perverse as to warrant the attention of this court, exercising its appellate jurisdiction under the Act.
16. The duty of this court when dealing with appeals from the Small Claims Court under Section 38 of the Act is equivalent to that of the Court of Appeal when dealing with a matter on a second appeal. In Kenya Breweries Ltd v Godfrey Odoyo [2010] eKLR the Court of Appeal distinguished between matters of law and matters of fact as follows: -
“First, this is a second appeal. In a first appeal the appellate court is by law enjoined to revisit the evidence that was before the trial court and analyse it, evaluate it and come to its own independent conclusion. In other words, a first appeal is by way of a retrial and facts must be revisited and analysed a fresh, - see Selle and Another vs. Associated Motor Boat Company Ltd and Others (1968) EA 123. 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.” [Empasis added)
17. Again, in Charles Kipkoech Leting v Express (K) Ltd & another [2018] eKLR the Court of Appeal further clarified that where a right of appeal is confined to questions of law only, an appellate court is duty bound to accept the findings of fact by the lower court. That the court should not interfere with the findings of the trial on the factual issues unless it is apparent that, based on the evidence on record, no reasonable tribunal or court could have reached the same conclusion, in which case, the holding or decision would be bad in law and therefore qualify to be reviewed on a second appeal. The court stated that; -
“This is a second appeal. Our mandate is as has been enunciated in a long line of cases decided by the Court. See Maina versus Mugiria [1983] KLR 78, Kenya Breweries Ltd versus Godfrey Odongo, Civil Appeal No. 127 of 2007, and Stanley N. Muriithi & Another versus Bernard Munene Ithiga [2016] eKLR, for the holdings inter alia that, on a second appeal, the Court confines itself to matters of law only, unless it is shown that the 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. See also the English case of Martin versus Glywed Distributors Ltd (t/a MBS Fastenings) 1983 ICR 511 where in, it was held inter alia that, where a right of appeal is confined to questions of law only, 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 and law, and, it should not interfere with the decisions of the trial or first appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law.”
18. I have considered memorandum of appeal, the evidence on record and the rival submissions by the parties and note that the instant appeal is solely on the issue of trial court’s finding on liability. The first duty of this court will therefore to determine whether the issue as raised in the appeal is one of law, to which this court will have jurisdiction, or one of fact, to which this court will be bound by the finding of the trial court and therefore beyond the powers of this court, exercising its appellate jurisdiction under the Act.
19. From the evidence on record, it is clear that in reaching its conclusion on the issue of liability, the trial court considered purely factual issues. The trial court considered the evidence tendered by both parties at trial and came to a conclusion that the appellant had proved to the required standard that the accident happened and that the Appellant was partially liable to the occurrence of the accident.
20. Having established that the determination by the trial court on the issue of liability was purely a factual one, the next step for this court is to examine and determine whether the trial court’s finding on those factual issues, based on the evidence on record, are so unreasonable within the principles set out by the Court of Appeal in the case of Kenya Breweries Ltd v Godfrey Odoyo (supra) to warrant the attention of this court, exercising its appellate jurisdiction under section 38(1) of the Small Claims Court Act.
21. This court notes that in apportioning liability in the ratio 50:50 between the Appellant and the Respondent, the trial court placed reliance on the fact that police officer No. 76448 PC Ignatius Kiplangat of Langata Police Sation who testified as CW1 and blamed the 2nd Respondent for the accident, did not actually witness the accident happen.
22. The trial court stated in its decision that from the evidence, the police officer arrived at the scene ten minutes after the occurrence of the accident and therefore his testimony on who to blame for the accident was doubtful, particularly taking into account that he did not bring any independent evidence to show that the 2nd Respondent was actually to blame for the accident.
23. The trial court concluded in its decision that due to lack of clarity of evidence as to who actually was to blame for the accident, the court was in doubt and consequently apportioned liability in the ratio of 50:50 between the Appellant and the Respondent.
24. I have reviewed the proceedings and noted that the Appellant called three witnesses in support of his case. I also note that the Respondents closed their case without calling any witness.
25. From the proceedings, I note that the Appellant testified as CW2 and adopted his witness statement dated 3rd July 2023 as evidence before the trial court. In his statement he narrated how the accident happened and blamed the 2nd Respondent for the accident. Further, No. 76448 PC Ignatius Kiplangat of Langata Police Sation also testified as CW1 and stated that he was the investigating officer and that he visited the scene immediately after he had been notified of the accident. That from his investigations, it was the 2nd Respondent who was to blame for the accident. That he subsequently issued a police abstract dated 27th June 2023 to the Appellant in that regard.
26. Having reviewed the evidence submitted by the Appellant in support of his case, and taking note that the Respondents did not adduce any evidence to the contrary, I find that the conclusion by the Hon. Adjudicator of apportioning liability between the Appellant and the Respondent in the ration of 50:50 was perverse and therefore bad in law as to warrant the attention of this court exercising its appellate jurisdiction under section 38 of the Small Claims Court Act.
27. It is evident from the record of appeal that apart from the general denials in their defence denying liability, the Respondents closed their case without calling any witness and did not therefore lead any evidence to challenge the Appellant’s account of how the accident happened.
28. In Moses Gichigi Githiru v Paddy Distributors Limited & another [2021] eKLR when faced with a substantially similar appeal on the issue of liability, the court stated as follows; -
“20. There was no evidence from the respondents to the contrary. There was therefore no reason to doubt what the appellant was stating to the court. Mere denial in the statement of defence is not sufficient. It must be followed by hard evidence…….
22. The details of the police abstract on the face of it blames the respondents for the accident despite the same pending under investigations. The production of the said abstract as a piece of evidence by consent in my view lends credence to the fact that the accident was solely caused by the respondent’s negligence.
23. In the premises, this court faults the holding by the trial court that the appellant contributed partially to the accident. He had nothing to do with it. It was the respondents who ought to have been careful and ensure that he kept safe and reasonable distance between him and the motorist ahead. I therefore find the respondents 100% liable for the accident.”
29. In this case, there was no single evidence on record adduced by the Respondents disputing the Appellant’s account of how the accident happened. The driver of the subject vehicle who was present at the scene when the accident happened was not called as witness by the Respondents.
30. Accordingly, I find that the holding by the trial court that the Appellant was partially liable for the accident to be erroneous in law and against the evidence on record.
31. For the reasons set out above, the appeal herein succeeds. Consequently, the trial court’s Judgment of 23rd November 2023 is here varied to the extent that the Respondent is wholly found liable for the accident. the rest of the orders are maintained.
32. The Respondent shall bear the cost of this appeal.
33. It so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS 6TH DAY OF AUGUST 2024
ADO MOSES
JUDGE
Moses – Court Assistant