REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS, CIVIL APPELLATE DIVISION
CIVIL APPEAL NO. E278 OF 2024
(Coram: Andayi W. F., J.)
HASSAN NUR MOHAMED................………………………………………………APPELLANT
VERSUS
SANDRA SHARLEEN (A minor suing through father and next friend
Alex Simiyu Mukubi) .......................................................................................RESPONDENT
(Being an appeal against the judgment and decree of Hon. G. Simatwo, Adjudicator and Resident Magistrate delivered on 22 nd December 2023 in Small Claims Court Case No. E3505 of 2023)
JUDGMENT
1. This appeal by way of a memorandum dated 1 st March 2024 arises from the judgment of the learned Adjudicator Hon. G. Simatwo in the Small Claims Court (SCC) delivered on 22 nd December 2023 in a claim dated 15 th May 2023 by the respondents (claimants in the SCC) against the appellant (respondent in the SCC). This appeal challenges the trial court’s judgment on both liability and assessment of quantum of damages.
2. The claim was by a minor aged about 11 years through her father as next friend through a claim dated 15 th May 2023 for general and special damages for personal injuries arising out of a road traffic accident involving the minor and the respondent’s motor vehicle registration number KDJ 155L on 22 nd November 2022 along Yusuf Haji avenue. The claim alleged that the respondent as driver of the vehicle was negligent in his manner of driving by he lost control of it and hit the minor. The minor sustained injuries being (a) blunt and bruise injuries on the scalp and face and (b) frequent headaches. She thereby suffered loss and damage and sought compensation in the Small Claims Court against the appellant for general and special damages.
3. The respondent in his response dated 21 st July 2023 denied the appellant’s claim in toto and raised a counterclaim to the claim. He pleaded in the alternative that the minor’s father was to blame or contributed to the accident as he was negligent in failing to take any or adequate precautions for the safety of his daughter, failed to be vigilante of his daughter playing on the road.
4. The claim before the SCC proceeded by way of hearing where each party made available witnesses who adopted their respective witness statements, testified and were cross-examined.
5. The witnesses for the respondent herein were CW 1, Cpl Vincent Obure of Shauri Moyo police station. He produced the police abstract issued following the accident. His evidence was that the accident involving the minor and the appellant on 22 nd November 2022 was reported at Shauri Moyo police station. The appellant had been blamed for the accident and he was charged in court and was out on cash bail.
6. In cross-examination CW 1 said he was not the investigating officer.
7. CW 2 Dr. Washington Wokabi gave evidence that he examined the minor following the accident and prepared a medical report dated 22 nd March 2023 which he produced in court as exhibit.
8. CW 3, Alex Mukubi gave evidence that the minor is his daughter. He adopted his witness statement dated 15 th May 2023 as his evidence in chief. He said that on the material morning of 22 nd November 2022 he was seeing off his daughter S. S. to school. He bade her bye and watched as she crossed the road at a pedestrian crossing. The appellant’s motor vehicle, a Toyota Prado being driven at high speed suddenly hit the child. According to him the driver was not paying attention as the point was clearly marked as a pedestrian crossing. He therefore blamed the driver for driving at high speed and failing to pay attention.
9. The respondent gave evidence at the trial as DW 1. He adopted his witness statement dated 21 st July 2023 as his evidence in chief. He said he was carefully driving the vehicle at moderate speed at the material time along Yusuf Haji avenue in Eastleigh. He felt a sudden impact. He alighted and found the minor lying on the ground. He said that he was surprised to see a child in the middle of a busy road during rush hour. He blamed the accident on the parent who was present for leaving the child unattended on the road.
10. In cross-examination, DW 1 said that there was no pedestrian crossing at that point and that there is a barrier so that pedestrians cannot access the road. He said that he was not aware that he had been blamed for the accident and that no investigations were conducted.
11. Upon considering the evidence, the learned Adjudicator found that the respondent had proved his claim on a balance of probability. He apportioned liability in the ratio of 80%:20% between the appellant and the respondent finding that the respondent contributed to the accident for failing to ensure that the road was clear before allowing the minor to cross the road. She awarded KShs 200,000/= general damages, KShs 4,550/= special damages and KShs 15,000/= court attendance fee besides costs and interest. She did not however reduce the sums awarded according to the ratio of liability.
12. Dissatisfied with the learned Adjudicator’s decision the appellant now appeals to this court on the following grounds of appeal in the memorandum:
a. The learned Adjudicator/Resident Magistrate erred in law in finding that she had jurisdiction to hear the matter.
b. The learned Adjudicator/Resident Magistrate erred in law in relying on irrelevant/immaterial judicial authority as the award made was so inordinately high that it is a wholly erroneous estimate of the damages.
c. The learned Adjudicator/Resident Magistrate erred in law in not considering established precedent by relying on a police abstract to establish liability when a police abstract is an indication that a crime/accident was reported and not to establish liability.
13. He prays that the judgment of the learned Adjudicator be set aside and this court makes findings that:
a. The learned Adjudicator did not have jurisdiction to hear a personal injury claim arising from an accident where common law negligence is to be established.
b. The learned Adjudicator was misguided in relying on irrelevant authority.
c. The learned Adjudicator did not consider precedent from relevant judicial authority.
d. The appellant be awarded the costs of the appeal.
14. The appeal was canvassed by way of written submissions filed by learned counsels for both parties. The submissions are considered in the analysis that follows.
15. Learned counsel for the appellant submitted that he had collapsed the grounds of appeal into one, this is, whether the trial magistrate (sic) improperly applied the principles established in law in finding that the respondent proved his case on a balance of probability.
16. As framed, this ground is on liability only and not on assessment of damages. Indeed, I have considered the submissions by learned counsel for the appellant and there is no argument on the assessment of damages. I therefore take it that the second ground of appeal in the memorandum that the award made was so inordinately high that it is a wholly erroneous estimate of the damages was dropped and so does not fall for this court to consider.
17. Yet again, the first ground in the memorandum of appeal that the trial court had no jurisdiction to try and determine the case has also not been argued in the submissions and therefore does not fall for determination.
18. The appellant submits that the learned trial Adjudicator found that the respondent had proved his case beyond a reasonable doubt (sic). That was not the finding of the SCC. The learned Adjudicator found that the claim had been proved on a balance of probabilities, the standard for civil cases. The appellant further submits that the SCC erred by “failing to find” that the respondent’s allegations on liability were proved on a balance of probabilities. Contrary to that submission, in fact that was the finding of the learned Adjudicator.
19. The appellant submits that the respondent tendered only a police abstract to support his allegations and that the SCC relied on the testimony of a police officer who was not the investigating officer, was not at the scene of the accident and never visited the scene of the accident thereafter. Further that the police abstract could not be relied upon to prove the case beyond the fact that an accident happened and was reported at the police station. In that respect, learned counsel cited the Court of Appeal case of Charles Ogolla Obiero v Joseph Munyambu Karega [2017] KECA 623 (KLR) .
20. Learned counsel submits that this court should proceed by way of retrial reconsider and reevaluate the entire evidence tendered before the SCC and draw its own conclusions though bearing in mind that it had not heard nor seen the witnesses and make an allowance for the same. He supports that submission with the case of Selle v. Associated Motor Boat Co. Ltd [1968] EA, 123. He has further cited the case of Muti v Wambua [2024] KEHC 3808 (KLR) where it was held that:
“A first appellate court is also the final court of fact and litigants are entitled to full fair independent consideration of the evidence. The parties shave a right to be heard both on issues of fact and issues of law, and the court must address itself to all issues raised and give reasons thereof. While considering the entire scope of section 78 of the civil procedure Act a court of first appeal can appreciate the entire evidence and come to a different conclusion.”
21. That submission on this court’s scope of jurisdiction on appeals from the SCC is not correct given the provisions of section 38 of the SCCA that appeals to this court are on matters of law only.
22. The appellant submits further that the appellant rebutted the evidence tendered by the respondent that he was to blame for the accident. Further that the respondent did not produce any investigative material regarding the case such as sketch plans of the scene of accident and further that the police abstract contained contradictory evidence which was not corroborated.
23. Learned counsel submits, quite erroneously in my view, that no eye witness was called by the respondent to support his version of events. I say that was erroneous because there is no requirement of law that in a road traffic accident case, evidence of one witness has to be corroborated by any other. Section 143 of the Evidence Act (Cap. 80) Laws of Kenya provides that no particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.
24. Learned counsel submits that the learned Adjudicator failed to consider the contradictions and inconsistencies in the written statement of PW 3 and his testimony in court. He has however not pointed out in the submissions any such contradictions and considering them, I have not found any.
25. On his part, learned counsel for the respondent submits that the respondent proved existence of the facts and adduced sufficient evidence that persuaded the SCC to make a Judgment in his favor. Firstly, the Claimant produced a police abstract that proved occurrence of the said accident. Further, he testified, relying on his witness statement and further a doctor testified to prove that indeed the minor sustained injuries.
26. I have considered the grounds of appeal raised in the memorandum of appeal, the record of appeal and the submissions by learned counsels for the parties.
27. An appeal to this court from the SCC is on points of law only as provided for under section 38 of the SCC Act . So, the first issue for this court to consider is whether the grounds of appeal raised by the appellant are on points of law only. Indeed, learned counsel for the appellant submits that his appeal is brought under section 38 of the SCCA.
28. The Court of Appeal in M’Riungu v. Republic [1983] KLR 455, considering how to proceed to determine an appeal on points of law only, held thus:
“where a right of appeal is confined to question of law, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of fact and law and it should not interfere with the decision of the trial court or the first appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law”.
29. The appellate court may however justifiably interfere with the findings of fact by the trial court where it is demonstrated that there was no evidence at all upon which such findings were based or that the evidence relied upon was of such a nature that no reasonable tribunal, properly addressing its mind on it, could have made such findings as has been held in numerous decisions. (see for instance Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others [2014] eKLR .
30. The principles are also captured in the case of Ephantus Mwangi And Another vs. Duncan Mwangi Wambugu, [1982-88] 1 KAR 278) and Simon Muchemi Atako & Another vs. Gordon Osore [2013] eKLR as follows:
a) The trial Magistrate reached a finding that is not based on evidence /or is based on no evidence going by the record.
b) The trial court misapprehended the evidence in some material respect.
c) The trial court proceeded on wrong principles by taking into account some irrelevant factor or leaving out of account some relevant factor.
d) The trial court failed to take account of a particular circumstance or probability material to an estimate of the evidence.
e) The trial Magistrate’s impression, based on the demeanour of a material witness, is inconsistent with the evidence in the case generally
31. Therefore, on any issue raised in the appeal that touches on facts, this court is not bound to upset the findings of the trial court unless this court finds that the trial court was in breach of any of the principles above.
32. Section 32 of the Small Claims Court Act exempts court proceedings from the rigid application of the standards of evidence applicable in other court proceedings and permits the court to include as evidence any material that it deems credible or trustworthy. It is upon the Adjudicator to determine the material to rely upon. The High Court will ordinarily not be seised of the facts presented before the SCC, since the record of the court consists of summaries of the facts of the issues in dispute in respect of those claims as determined and recorded by the SCC during the hearing of the claims ( section 22(b) of the Act ). Seeing that the record consists only of summaries it follows that an appellate cannot proceed with the case by way of a rehearing and re-evaluation of evidence as is the norm in civil matters before the magistrate’s court.
33. In this case however, the learned Adjudicator relied entirely on the evidence presented by the witnesses and therefore this court will consider the same to determine whether her decision is subject to interference by this court.
34. The first port of call is to understand the working of the SCC. In my understanding, a small claim is a claim not just limited in the name or the monetary value or jurisdiction of the court but also small or limited in terms of the timelines for the hearing and determination, the procedures of lodging and prosecuting the claim, in terms of evidence taking and evaluation and in terms of the brevity of the court’s decision. The court applies the law to determine disputes in a simple way almost informally but expeditiously as per the SCC Act. For instance, section 34(2) provides that Judgment given in determination of any claim shall be delivered on the same day and in any event, not later than three (3) days from the date of the hearing.
35. So, when parties subject their claims before this court, they should be aware of and be prepared to abide by the constitutive elements of the SCC including the fact that appeals to the High Court are only on issues of law and the appeal is final. The case before a SCC is a claim and not a suit. I believe that is why the SCC Act exempts the court proceedings from the rigid application of the standards of evidence under the Law of Evidence Act (Cap. 80) Laws of Kenya and permits the court to include as evidence any material that it deems credible or trustworthy. The procedures are also flexible and the court is not bound by the Civil Procedure Rules (2010) .
36. Therefore, the submission by the respondent that the pleadings by the appellant did not conform to certain provisions of the Civil Procedure Act cannot be taken to be serious.
37. Learned counsel for the appellant submits that they had condensed the grounds of appeal into one, that is whether the trial court improperly applied the principles of law in finding that the respondent proved her case on a balance of probability.
38. Considering the submissions by the appellant, they are basically on two issues. First that the learned Adjudicator relied on the evidence of the police officer and the police abstract to find that the respondent had established her case on a balance of probability yet the police officer never visited the scene of the accident and he was not the investigating officer. Further that the police abstract had no evidence to show how the accident occurred.
39. The second issue is that the learned Adjudicator failed to evaluate the evidence of the appellant alongside that of the respondent’s father and to find that the appellant’s evidence had discounted that of the respondent’s father and therefore the same could not be relied upon to find that the case had been proved on a balance of probability.
40. Therefore, the main issue of law raised by the appellant through the grounds of appeal and the submissions of learned counsel is on the weight of evidence relied upon by the learned Adjudicator is that the learned Adjudicator disregarded the evidence tendered by the appellant and instead relied on the evidence from the respondent to arrive at her decision.
41. I have read the judgment of the SCC and I find that the manner in which the learned Adjudicator made an evaluation of the evidence leaves one with the impression that she was struggling to make a balanced recap of the evidence tendered before the court. For instance, the learned Adjudicator starts her analysis of the evidence by indicating that, “the court has undertaken a thorough review of the documents presented by the parties with particular focus on injuries sustained by the claimant and the medical report provided by Dr. Wokabi.” This would be an indication that the case proceeded without oral testimony but only on the basis of documents filed, under section 30 of the Small Claims Court Act (Cap. 10A) Laws of Kenya. The said section provides that:
“Subject to agreement of all parties to the proceedings, the Court may determine any claim and give such orders as it considers fit and just on the basis of documents and written submissions, statements or other submissions presented to the Court. learned Adjudicator.”
42. That was not the case herein because besides the witness statements and documents filed, witnesses testified before court.
43. The learned Adjudicator further states in the judgment that:
9. “... failure by the respondent (in the SCC) to adduce any evidence must impact this claim negatively. The respondent did not controvert the evidence tendered by the claimant but rather denied liability on his part and placed the same on the father of the minor.
10. It is only the Claimant who led evidence on how the accident occurred due to the manner of driving by the respondent. He produced the police abstract which indicated that the motor vehicle registration number KDJ 155L was to blame for the said accident and this fact was neither rebutted nor controverted ...”
44. These statements are erroneous in the sense that in fact the respondent testified before the learned Adjudicator, adopted his witness statement as his evidence in chief and was cross-examined. He thus controverted the evidence tendered by the Claimant that he was solely to blame for the accident. Further, the police abstract was not produced by the Claimant/respondent herein but by the police officer, CW 1.
45. Therefore, although the evaluation was brief, as it should be for a SCC, it did not correctly capture the case as presented by the parties. To that end, that was an error of law that calls for this court’s intervention.
46. It is true that PW 1 said that he did not visit the scene and was not the investigating officer in the case. However, he produced the police abstract in which it was indicated that the appellant had been blamed for causing the accident and it was intended to have him charged with driving without due care and attention. PW 1 further alleged that the appellant had been charged in court and was out on cash bail. However, he did not as much make available any documentary proceedings in that case such as the proceedings, a copy of the charge sheet or cash bail receipt from court. The appellant stated in evidence that he was not aware that he had been charged. Given that PW 1 was not the investigating officer nor did he visit the scene of the accident, he did not have with him the investigation diary then his evidence that the appellant had been blamed for the accident and had been charged in court remained hearsay and unreliable.
47. However, besides the evidence of the police abstract and the testimony of PW 1, there was evidence of PW 3 an eye-witness, the father of the minor. It is not disputed that he witnessed the accident. In fact, the appellant said that indeed PW 3 was present at the scene.
48. The evidence of PW 3 was that the appellant was speeding and failed to give way to the minor who was crossing the road at a designated point. The appellant on his part testified that in fact that point on the road was not designated for pedestrian crossing but instead it had a barrier to stop pedestrians from crossing from there. The question is, if that was true, how come the minor had crossed the road at that point? Yet again the appellant’s evidence was that he did not see the minor on the road but only felt a sudden impact on his vehicle and when he stopped and alighted he saw the child lying on the tarmac and his father was also there. That is an indication that all as he approached, he had not seen the child on the road as she crossed. Yet in his own evidence, this was a busy road and during rush hour, meaning the traffic, both vehicular and human was high on the road at the time. How then could he have failed to notice the child on the road. I also note that he only denied that the point was designated as a crossing for pedestrians in cross-examination. I find it incredible that if indeed the point was not marked for pedestrian crossing, he could have failed to record that in his witness statement which he adopted in his evidence in chief. I therefore find that the minor was knocked down at a designated crossing point as she crossed the road.
49. If the appellant’s version of the accident is taken to be correct, then the fact that he could not notice the child at all until his vehicle had knocked her down can only mean one thing, that he was at that time not paying attention to other road users on the road. Secondly, given his evidence that it was rush hour it also supports the evidence of PW 3 that the appellant must have been rushing at the time and thus speeding in the circumstances. In the process, he failed to see the child who was crossing the road or if he saw her he must have thought he would quickly pass before the child reached the vehicle. In that respect I am inclined to believe the evidence of PW 3 that indeed the place was a designated crossing point and the appellant was rushing to beat the minor at the crossing. His assertion that he did not see the minor but only heard the impact cannot be believed.
50. A prudent driver on the road is expected to see and adhere to clear road signs and markings. Failure to do so, as was the case herein, would be an indication that he was not careful while driving or was distracted which in either case connotes negligence on his part.
51. In all those circumstances, it is apparent that the appellant was negligent in his manner of driving by failing to pay head to road markings and other road users and thus caused the accident.
52. I therefore find that, even with the errors made by the learned Adjudicator as pointed out above, she properly evaluated the evidence and arrived at the correct conclusion. I find no reason to fault her.
53. The learned Adjudicator apportioned liability in the ratio of 80:20 placing some blame upon the father for letting her young daughter cross the road without his company. I think, if any apportionment of liability would have been made, it ought to have been upon the child whom I believe was shown to have possessed the requisite road sense as to be expected to take precautions for her own safety. That was why she was let to cross the road.
54. In the case of Rahima Tayab & Another versus Anna Mary Kinaru (1982-88) 1KLR 90, , the Court of Appeal considered the question of age of a child as a factor whenever questions of contributory negligence arise. The court cited its predecessor’s decision in Attorney General versus Vinod (1971) EA 147 which found that a boy aged eight and a half years who ran out from a line of parked cars into the path of an oncoming car, was contributorily negligent to the extent of 10%. The court quoted Mustafa J.A. who said:-
“In dealing with contributory negligence on the part of a young boy the age of this boy and his ability to understand and appreciate the dangers involved have to be taken into consideration.”
55. The learned Judge of Appeal went on to quote the judgment of Lord Denning in Gough versus Thorne (1966) WLR 1387 where he said:
“A very young child cannot be guilty of contributory negligence. An older child may be. But it depends on the circumstances. A judge should only find a child guilty of contributory negligence if he or she is of such an age as to be expected to take precautions for his or her own safety; and then he or she is only to be found guilty if blame is attached to him or her. A child has not the road sense of his or her elders. He or she is not to be found guilty unless he or she is blameworthy.
56. However, given this court’s findings above, this court would not have found the minor liable to any measure at all. However, this court will not lightly interfere with the findings of a trial court on apportionment of liability. To this end it was held in the case of Khambi and Another v Mahithi and Another [1968] EA 70, it was held that:
“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.”
57. I will therefore not interfere with the apportionment of liability as made by the lower court.
58. Consequently, I find the appeal has no merit and it is dismissed. The judgment and order of the learned trial Adjudicator is affirmed. The award of damages remains as assessed by the SCC.
59. Interest on general damages will run from the date of judgment in the SCC while interest on special damages will run from the date of filing the suit before the SCC.
60. Orders accordingly.
Delivered, dated and signed on the Virtual Platform, Teams this 4 th day of September 2026.
ANDAYI W. FRANCIS
JUDGE
In the presence of:
N/A for the Appellant.
Kitwai h/b for Nyabuto for the Respondent.
Ummu h/b for Amina: Court Assistant.
ANDAYI W. FRANCIS
JUDGE
milimani HCCA No. e278/202413/liability and damages_SCC
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS, CIVIL APPELLATE DIVISION
CIVIL APPEAL NO. E278 OF 2024
(Coram: Andayi W. F., J.)
HASSAN NUR MOHAMED................………………………………………………APPELLANT
VERSUS
SANDRA SHARLEEN (A minor suing through father and next friend
Alex Simiyu Mukubi) .......................................................................................RESPONDENT
(Being an appeal against the judgment and decree of Hon. G. Simatwo, Adjudicator and Resident Magistrate delivered on 22 nd December 2023 in Small Claims Court Case No. E3505 of 2023)
JUDGMENT
1. This appeal by way of a memorandum dated 1 st March 2024 arises from the judgment of the learned Adjudicator Hon. G. Simatwo in the Small Claims Court (SCC) delivered on 22 nd December 2023 in a claim dated 15 th May 2023 by the respondents (claimants in the SCC) against the appellant (respondent in the SCC). This appeal challenges the trial court’s judgment on both liability and assessment of quantum of damages.
2. The claim was by a minor aged about 11 years through her father as next friend through a claim dated 15 th May 2023 for general and special damages for personal injuries arising out of a road traffic accident involving the minor and the respondent’s motor vehicle registration number KDJ 155L on 22 nd November 2022 along Yusuf Haji avenue. The claim alleged that the respondent as driver of the vehicle was negligent in his manner of driving by he lost control of it and hit the minor. The minor sustained injuries being (a) blunt and bruise injuries on the scalp and face and (b) frequent headaches. She thereby suffered loss and damage and sought compensation in the Small Claims Court against the appellant for general and special damages.
3. The respondent in his response dated 21 st July 2023 denied the appellant’s claim in toto and raised a counterclaim to the claim. He pleaded in the alternative that the minor’s father was to blame or contributed to the accident as he was negligent in failing to take any or adequate precautions for the safety of his daughter, failed to be vigilante of his daughter playing on the road.
4. The claim before the SCC proceeded by way of hearing where each party made available witnesses who adopted their respective witness statements, testified and were cross-examined.
5. The witnesses for the respondent herein were CW 1, Cpl Vincent Obure of Shauri Moyo police station. He produced the police abstract issued following the accident. His evidence was that the accident involving the minor and the appellant on 22 nd November 2022 was reported at Shauri Moyo police station. The appellant had been blamed for the accident and he was charged in court and was out on cash bail.
6. In cross-examination CW 1 said he was not the investigating officer.
7. CW 2 Dr. Washington Wokabi gave evidence that he examined the minor following the accident and prepared a medical report dated 22 nd March 2023 which he produced in court as exhibit.
8. CW 3, Alex Mukubi gave evidence that the minor is his daughter. He adopted his witness statement dated 15 th May 2023 as his evidence in chief. He said that on the material morning of 22 nd November 2022 he was seeing off his daughter S. S. to school. He bade her bye and watched as she crossed the road at a pedestrian crossing. The appellant’s motor vehicle, a Toyota Prado being driven at high speed suddenly hit the child. According to him the driver was not paying attention as the point was clearly marked as a pedestrian crossing. He therefore blamed the driver for driving at high speed and failing to pay attention.
9. The respondent gave evidence at the trial as DW 1. He adopted his witness statement dated 21 st July 2023 as his evidence in chief. He said he was carefully driving the vehicle at moderate speed at the material time along Yusuf Haji avenue in Eastleigh. He felt a sudden impact. He alighted and found the minor lying on the ground. He said that he was surprised to see a child in the middle of a busy road during rush hour. He blamed the accident on the parent who was present for leaving the child unattended on the road.
10. In cross-examination, DW 1 said that there was no pedestrian crossing at that point and that there is a barrier so that pedestrians cannot access the road. He said that he was not aware that he had been blamed for the accident and that no investigations were conducted.
11. Upon considering the evidence, the learned Adjudicator found that the respondent had proved his claim on a balance of probability. He apportioned liability in the ratio of 80%:20% between the appellant and the respondent finding that the respondent contributed to the accident for failing to ensure that the road was clear before allowing the minor to cross the road. She awarded KShs 200,000/= general damages, KShs 4,550/= special damages and KShs 15,000/= court attendance fee besides costs and interest. She did not however reduce the sums awarded according to the ratio of liability.
12. Dissatisfied with the learned Adjudicator’s decision the appellant now appeals to this court on the following grounds of appeal in the memorandum:
a. The learned Adjudicator/Resident Magistrate erred in law in finding that she had jurisdiction to hear the matter.
b. The learned Adjudicator/Resident Magistrate erred in law in relying on irrelevant/immaterial judicial authority as the award made was so inordinately high that it is a wholly erroneous estimate of the damages.
c. The learned Adjudicator/Resident Magistrate erred in law in not considering established precedent by relying on a police abstract to establish liability when a police abstract is an indication that a crime/accident was reported and not to establish liability.
13. He prays that the judgment of the learned Adjudicator be set aside and this court makes findings that:
a. The learned Adjudicator did not have jurisdiction to hear a personal injury claim arising from an accident where common law negligence is to be established.
b. The learned Adjudicator was misguided in relying on irrelevant authority.
c. The learned Adjudicator did not consider precedent from relevant judicial authority.
d. The appellant be awarded the costs of the appeal.
14. The appeal was canvassed by way of written submissions filed by learned counsels for both parties. The submissions are considered in the analysis that follows.
15. Learned counsel for the appellant submitted that he had collapsed the grounds of appeal into one, this is, whether the trial magistrate (sic) improperly applied the principles established in law in finding that the respondent proved his case on a balance of probability.
16. As framed, this ground is on liability only and not on assessment of damages. Indeed, I have considered the submissions by learned counsel for the appellant and there is no argument on the assessment of damages. I therefore take it that the second ground of appeal in the memorandum that the award made was so inordinately high that it is a wholly erroneous estimate of the damages was dropped and so does not fall for this court to consider.
17. Yet again, the first ground in the memorandum of appeal that the trial court had no jurisdiction to try and determine the case has also not been argued in the submissions and therefore does not fall for determination.
18. The appellant submits that the learned trial Adjudicator found that the respondent had proved his case beyond a reasonable doubt (sic). That was not the finding of the SCC. The learned Adjudicator found that the claim had been proved on a balance of probabilities, the standard for civil cases. The appellant further submits that the SCC erred by “failing to find” that the respondent’s allegations on liability were proved on a balance of probabilities. Contrary to that submission, in fact that was the finding of the learned Adjudicator.
19. The appellant submits that the respondent tendered only a police abstract to support his allegations and that the SCC relied on the testimony of a police officer who was not the investigating officer, was not at the scene of the accident and never visited the scene of the accident thereafter. Further that the police abstract could not be relied upon to prove the case beyond the fact that an accident happened and was reported at the police station. In that respect, learned counsel cited the Court of Appeal case of Charles Ogolla Obiero v Joseph Munyambu Karega [2017] KECA 623 (KLR) .
20. Learned counsel submits that this court should proceed by way of retrial reconsider and reevaluate the entire evidence tendered before the SCC and draw its own conclusions though bearing in mind that it had not heard nor seen the witnesses and make an allowance for the same. He supports that submission with the case of Selle v. Associated Motor Boat Co. Ltd [1968] EA, 123. He has further cited the case of Muti v Wambua [2024] KEHC 3808 (KLR) where it was held that:
“A first appellate court is also the final court of fact and litigants are entitled to full fair independent consideration of the evidence. The parties shave a right to be heard both on issues of fact and issues of law, and the court must address itself to all issues raised and give reasons thereof. While considering the entire scope of section 78 of the civil procedure Act a court of first appeal can appreciate the entire evidence and come to a different conclusion.”
21. That submission on this court’s scope of jurisdiction on appeals from the SCC is not correct given the provisions of section 38 of the SCCA that appeals to this court are on matters of law only.
22. The appellant submits further that the appellant rebutted the evidence tendered by the respondent that he was to blame for the accident. Further that the respondent did not produce any investigative material regarding the case such as sketch plans of the scene of accident and further that the police abstract contained contradictory evidence which was not corroborated.
23. Learned counsel submits, quite erroneously in my view, that no eye witness was called by the respondent to support his version of events. I say that was erroneous because there is no requirement of law that in a road traffic accident case, evidence of one witness has to be corroborated by any other. Section 143 of the Evidence Act (Cap. 80) Laws of Kenya provides that no particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.
24. Learned counsel submits that the learned Adjudicator failed to consider the contradictions and inconsistencies in the written statement of PW 3 and his testimony in court. He has however not pointed out in the submissions any such contradictions and considering them, I have not found any.
25. On his part, learned counsel for the respondent submits that the respondent proved existence of the facts and adduced sufficient evidence that persuaded the SCC to make a Judgment in his favor. Firstly, the Claimant produced a police abstract that proved occurrence of the said accident. Further, he testified, relying on his witness statement and further a doctor testified to prove that indeed the minor sustained injuries.
26. I have considered the grounds of appeal raised in the memorandum of appeal, the record of appeal and the submissions by learned counsels for the parties.
27. An appeal to this court from the SCC is on points of law only as provided for under section 38 of the SCC Act . So, the first issue for this court to consider is whether the grounds of appeal raised by the appellant are on points of law only. Indeed, learned counsel for the appellant submits that his appeal is brought under section 38 of the SCCA.
28. The Court of Appeal in M’Riungu v. Republic [1983] KLR 455, considering how to proceed to determine an appeal on points of law only, held thus:
“where a right of appeal is confined to question of law, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of fact and law and it should not interfere with the decision of the trial court or the first appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law”.
29. The appellate court may however justifiably interfere with the findings of fact by the trial court where it is demonstrated that there was no evidence at all upon which such findings were based or that the evidence relied upon was of such a nature that no reasonable tribunal, properly addressing its mind on it, could have made such findings as has been held in numerous decisions. (see for instance Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others [2014] eKLR .
30. The principles are also captured in the case of Ephantus Mwangi And Another vs. Duncan Mwangi Wambugu, [1982-88] 1 KAR 278) and Simon Muchemi Atako & Another vs. Gordon Osore [2013] eKLR as follows:
a) The trial Magistrate reached a finding that is not based on evidence /or is based on no evidence going by the record.
b) The trial court misapprehended the evidence in some material respect.
c) The trial court proceeded on wrong principles by taking into account some irrelevant factor or leaving out of account some relevant factor.
d) The trial court failed to take account of a particular circumstance or probability material to an estimate of the evidence.
e) The trial Magistrate’s impression, based on the demeanour of a material witness, is inconsistent with the evidence in the case generally
31. Therefore, on any issue raised in the appeal that touches on facts, this court is not bound to upset the findings of the trial court unless this court finds that the trial court was in breach of any of the principles above.
32. Section 32 of the Small Claims Court Act exempts court proceedings from the rigid application of the standards of evidence applicable in other court proceedings and permits the court to include as evidence any material that it deems credible or trustworthy. It is upon the Adjudicator to determine the material to rely upon. The High Court will ordinarily not be seised of the facts presented before the SCC, since the record of the court consists of summaries of the facts of the issues in dispute in respect of those claims as determined and recorded by the SCC during the hearing of the claims ( section 22(b) of the Act ). Seeing that the record consists only of summaries it follows that an appellate cannot proceed with the case by way of a rehearing and re-evaluation of evidence as is the norm in civil matters before the magistrate’s court.
33. In this case however, the learned Adjudicator relied entirely on the evidence presented by the witnesses and therefore this court will consider the same to determine whether her decision is subject to interference by this court.
34. The first port of call is to understand the working of the SCC. In my understanding, a small claim is a claim not just limited in the name or the monetary value or jurisdiction of the court but also small or limited in terms of the timelines for the hearing and determination, the procedures of lodging and prosecuting the claim, in terms of evidence taking and evaluation and in terms of the brevity of the court’s decision. The court applies the law to determine disputes in a simple way almost informally but expeditiously as per the SCC Act. For instance, section 34(2) provides that Judgment given in determination of any claim shall be delivered on the same day and in any event, not later than three (3) days from the date of the hearing.
35. So, when parties subject their claims before this court, they should be aware of and be prepared to abide by the constitutive elements of the SCC including the fact that appeals to the High Court are only on issues of law and the appeal is final. The case before a SCC is a claim and not a suit. I believe that is why the SCC Act exempts the court proceedings from the rigid application of the standards of evidence under the Law of Evidence Act (Cap. 80) Laws of Kenya and permits the court to include as evidence any material that it deems credible or trustworthy. The procedures are also flexible and the court is not bound by the Civil Procedure Rules (2010) .
36. Therefore, the submission by the respondent that the pleadings by the appellant did not conform to certain provisions of the Civil Procedure Act cannot be taken to be serious.
37. Learned counsel for the appellant submits that they had condensed the grounds of appeal into one, that is whether the trial court improperly applied the principles of law in finding that the respondent proved her case on a balance of probability.
38. Considering the submissions by the appellant, they are basically on two issues. First that the learned Adjudicator relied on the evidence of the police officer and the police abstract to find that the respondent had established her case on a balance of probability yet the police officer never visited the scene of the accident and he was not the investigating officer. Further that the police abstract had no evidence to show how the accident occurred.
39. The second issue is that the learned Adjudicator failed to evaluate the evidence of the appellant alongside that of the respondent’s father and to find that the appellant’s evidence had discounted that of the respondent’s father and therefore the same could not be relied upon to find that the case had been proved on a balance of probability.
40. Therefore, the main issue of law raised by the appellant through the grounds of appeal and the submissions of learned counsel is on the weight of evidence relied upon by the learned Adjudicator is that the learned Adjudicator disregarded the evidence tendered by the appellant and instead relied on the evidence from the respondent to arrive at her decision.
41. I have read the judgment of the SCC and I find that the manner in which the learned Adjudicator made an evaluation of the evidence leaves one with the impression that she was struggling to make a balanced recap of the evidence tendered before the court. For instance, the learned Adjudicator starts her analysis of the evidence by indicating that, “the court has undertaken a thorough review of the documents presented by the parties with particular focus on injuries sustained by the claimant and the medical report provided by Dr. Wokabi.” This would be an indication that the case proceeded without oral testimony but only on the basis of documents filed, under section 30 of the Small Claims Court Act (Cap. 10A) Laws of Kenya. The said section provides that:
“Subject to agreement of all parties to the proceedings, the Court may determine any claim and give such orders as it considers fit and just on the basis of documents and written submissions, statements or other submissions presented to the Court. learned Adjudicator.”
42. That was not the case herein because besides the witness statements and documents filed, witnesses testified before court.
43. The learned Adjudicator further states in the judgment that:
9. “... failure by the respondent (in the SCC) to adduce any evidence must impact this claim negatively. The respondent did not controvert the evidence tendered by the claimant but rather denied liability on his part and placed the same on the father of the minor.
10. It is only the Claimant who led evidence on how the accident occurred due to the manner of driving by the respondent. He produced the police abstract which indicated that the motor vehicle registration number KDJ 155L was to blame for the said accident and this fact was neither rebutted nor controverted ...”
44. These statements are erroneous in the sense that in fact the respondent testified before the learned Adjudicator, adopted his witness statement as his evidence in chief and was cross-examined. He thus controverted the evidence tendered by the Claimant that he was solely to blame for the accident. Further, the police abstract was not produced by the Claimant/respondent herein but by the police officer, CW 1.
45. Therefore, although the evaluation was brief, as it should be for a SCC, it did not correctly capture the case as presented by the parties. To that end, that was an error of law that calls for this court’s intervention.
46. It is true that PW 1 said that he did not visit the scene and was not the investigating officer in the case. However, he produced the police abstract in which it was indicated that the appellant had been blamed for causing the accident and it was intended to have him charged with driving without due care and attention. PW 1 further alleged that the appellant had been charged in court and was out on cash bail. However, he did not as much make available any documentary proceedings in that case such as the proceedings, a copy of the charge sheet or cash bail receipt from court. The appellant stated in evidence that he was not aware that he had been charged. Given that PW 1 was not the investigating officer nor did he visit the scene of the accident, he did not have with him the investigation diary then his evidence that the appellant had been blamed for the accident and had been charged in court remained hearsay and unreliable.
47. However, besides the evidence of the police abstract and the testimony of PW 1, there was evidence of PW 3 an eye-witness, the father of the minor. It is not disputed that he witnessed the accident. In fact, the appellant said that indeed PW 3 was present at the scene.
48. The evidence of PW 3 was that the appellant was speeding and failed to give way to the minor who was crossing the road at a designated point. The appellant on his part testified that in fact that point on the road was not designated for pedestrian crossing but instead it had a barrier to stop pedestrians from crossing from there. The question is, if that was true, how come the minor had crossed the road at that point? Yet again the appellant’s evidence was that he did not see the minor on the road but only felt a sudden impact on his vehicle and when he stopped and alighted he saw the child lying on the tarmac and his father was also there. That is an indication that all as he approached, he had not seen the child on the road as she crossed. Yet in his own evidence, this was a busy road and during rush hour, meaning the traffic, both vehicular and human was high on the road at the time. How then could he have failed to notice the child on the road. I also note that he only denied that the point was designated as a crossing for pedestrians in cross-examination. I find it incredible that if indeed the point was not marked for pedestrian crossing, he could have failed to record that in his witness statement which he adopted in his evidence in chief. I therefore find that the minor was knocked down at a designated crossing point as she crossed the road.
49. If the appellant’s version of the accident is taken to be correct, then the fact that he could not notice the child at all until his vehicle had knocked her down can only mean one thing, that he was at that time not paying attention to other road users on the road. Secondly, given his evidence that it was rush hour it also supports the evidence of PW 3 that the appellant must have been rushing at the time and thus speeding in the circumstances. In the process, he failed to see the child who was crossing the road or if he saw her he must have thought he would quickly pass before the child reached the vehicle. In that respect I am inclined to believe the evidence of PW 3 that indeed the place was a designated crossing point and the appellant was rushing to beat the minor at the crossing. His assertion that he did not see the minor but only heard the impact cannot be believed.
50. A prudent driver on the road is expected to see and adhere to clear road signs and markings. Failure to do so, as was the case herein, would be an indication that he was not careful while driving or was distracted which in either case connotes negligence on his part.
51. In all those circumstances, it is apparent that the appellant was negligent in his manner of driving by failing to pay head to road markings and other road users and thus caused the accident.
52. I therefore find that, even with the errors made by the learned Adjudicator as pointed out above, she properly evaluated the evidence and arrived at the correct conclusion. I find no reason to fault her.
53. The learned Adjudicator apportioned liability in the ratio of 80:20 placing some blame upon the father for letting her young daughter cross the road without his company. I think, if any apportionment of liability would have been made, it ought to have been upon the child whom I believe was shown to have possessed the requisite road sense as to be expected to take precautions for her own safety. That was why she was let to cross the road.
54. In the case of Rahima Tayab & Another versus Anna Mary Kinaru (1982-88) 1KLR 90, , the Court of Appeal considered the question of age of a child as a factor whenever questions of contributory negligence arise. The court cited its predecessor’s decision in Attorney General versus Vinod (1971) EA 147 which found that a boy aged eight and a half years who ran out from a line of parked cars into the path of an oncoming car, was contributorily negligent to the extent of 10%. The court quoted Mustafa J.A. who said:-
“In dealing with contributory negligence on the part of a young boy the age of this boy and his ability to understand and appreciate the dangers involved have to be taken into consideration.”
55. The learned Judge of Appeal went on to quote the judgment of Lord Denning in Gough versus Thorne (1966) WLR 1387 where he said:
“A very young child cannot be guilty of contributory negligence. An older child may be. But it depends on the circumstances. A judge should only find a child guilty of contributory negligence if he or she is of such an age as to be expected to take precautions for his or her own safety; and then he or she is only to be found guilty if blame is attached to him or her. A child has not the road sense of his or her elders. He or she is not to be found guilty unless he or she is blameworthy.
56. However, given this court’s findings above, this court would not have found the minor liable to any measure at all. However, this court will not lightly interfere with the findings of a trial court on apportionment of liability. To this end it was held in the case of Khambi and Another v Mahithi and Another [1968] EA 70, it was held that:
“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.”
57. I will therefore not interfere with the apportionment of liability as made by the lower court.
58. Consequently, I find the appeal has no merit and it is dismissed. The judgment and order of the learned trial Adjudicator is affirmed. The award of damages remains as assessed by the SCC.
59. Interest on general damages will run from the date of judgment in the SCC while interest on special damages will run from the date of filing the suit before the SCC.
60. Orders accordingly.
Delivered, dated and signed on the Virtual Platform, Teams this 4 th day of September 2026.
ANDAYI W. FRANCIS
JUDGE
In the presence of:
N/A for the Appellant.
Kitwai h/b for Nyabuto for the Respondent.
Ummu h/b for Amina: Court Assistant.
ANDAYI W. FRANCIS
JUDGE
milimani HCCA No. e278/202413/liability and damages_SCC