(Being an Appeal against the Judgment and Decree of Small Claims Court by Hon. M. Kamau in Thika SCCC No. E1151/2024 delivered on 17th April, 2025).
1. Many are the decisions which set the duties and the tempo of the appellate court, and whereas I may not be able to exhaust them in this Judgement, I must remark from the outset, that an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. However, the difficult of upsetting the finding of the lower court arises, where, the conclusion has been arrived at on conflicting testimony by a trial court which saw and heard the witnesses. Consequently, the appellate court must keep close to its mind, that it has not enjoyed this opportunity and that the view of the trial court, as to where credibility lies, is entitled to great weight. Put differently, the appellate court has to tip-toe, cautiously. To tip-toe cautiously, does not however, mean that the court is infertile to disturb the conclusion arrived by the trial court, where, demeanor and credibility of a witness, cannot be traced in the proceedings. Thus, logic and common sense, put together.
2. In Peters Vs Sunday Post Limited(1958) EA 424, it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide.
3. In Rook Vs Rairrie [1941] 1 ALL E.R. 297 , the principles which guide an appellate court, were echoed with approval by the Court of Appeal in Butt Vs Khan [1981] KLR 349 when it held as per Law, J.A that an appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.
4. In Selle & another Vs Associated Motor Boat Co. Ltd. & others (1968) EA 123 it was stated that the appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the appellate court from a trial by the High Court is by way of retrial and the principles upon which the appellate court acts in such an appeal are well settled. Briefly put, they are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.
5. In the primary suit, the Claimant, Janet Wairimu Mwambia (CW1) told court that om 4th September 2024 at Kwambira Area along Nairobi-Naivasha highway was a pedestrian when the driver of Motor Vehicle Registration Number KCZ 036P so negligently carelessly and /or recklessly that he lost control causing an accident thereby occasioning the Claimant injuries to her leg, hand and lost 3 teeth. The Claimant was taken to Kikuyu Hospital for head scan and then to Thika Hospital for treatment. The Claimant equally adopted her list of documents as exhibits 2-9 respectively.
6. Under cross examination, the claimant said that she did not sustain any fracture as she was treated and discharged the same day. She did not use footbridge as there isn’t any. The accident occurred at the end of the road and was being driven outside the road.
7. PC Idd Ndege(CW2) produced a Police Abstract dated 5th September 2024 with respect to this accident and said that the accident Motor Vehicle was being driven by Simeon Kinyua Kibaara and upon reaching the scene of the accident, the Claimant was knocked down in the process of crossing from right side of the driver to the left and sustained injuries to the hip, back and head. She was issued with a P3 Form which the witness produced as Exhibit 1. The witness further said that this is a busy area and it is a disadvantage to pedestrian particularly for children who have difficulties crossing road in their absence. There is a lot of conflict between vehicles and pedestrians. Pedestrian cross the road at this point. There is no overpass. Under cross examination, the witness said that he did not visit the scene and there is no pedestrian crossing in the area.
8. Simon Kibaara Kinyua (RW1) said that on the fateful day, he was driving from Nairobi to Nakuru and upon arrival at Kwambira area he slowed down when he noticed a woman running from right to left between vehicles and he engaged brakes and hooted but hit her. She took her to the hospital but 50 metres ahead, there was a place the Claimant would have crossed. Under cross examination, he was doing at 30-40 kph and that the Claimant suddenly emerged on the road crossing. He tried to apply the brakes but suddenly hit her. The witness said there is a pedestrian road and there is no stage in the area.
9. In the Judgement delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and proffered an Appeal based on the following grounds;
a. That the Learned Magistrate misapprehended and /or misconceived the tenor, effect and consequences of the evidence tendered in court on behalf of the Appellant as regards to as to the liability of the Respondents and thereby arrived at an erroneous decision.
b. That the Learned Magistrate erred in law and fact by apportioning the appellant 50% liability for the occurrence of the accident despite no evidence supporting the assertion thereof.
c. That the Learned Magistrate erred in law and fact by disregarding the appellant’s duly filed submissions and the binding authorities made on behalf of the appellant without any proper reasons to do so.
d. That the Learned Magistrate erred in law and fact in not exercising her discretion judiciously.
10. The Respondent and the Appellants filed written submissions and relied on them in the determination of this Appeal.
Analysis and Determination:
11. Section 38 of the Small Claims Court Act provides for the jurisdiction of this court in determining appeals from the Small Claims Court. It provides thus; -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.”
12. In the English case of Martin Versus Glywed Distributors Ltd (t/a MBS Fastenings) 1983 ICR 511 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.”
13. Consequently, it is pellucid, that the High Court is clothed with the jurisdiction to hear matters of law and nothing else.
14. This court notes that the appellant settled on 4 grounds for determination. Additionally, I note that the issue of quantum is not a subject of this appeal but liability, is. Looking at the totality of the grounds, I opine that the only issue which recommends itself for determination is whether or not, the Learned Magistrate erred in apportioning liability.
15. In this case, the Claimant said that she was hit as she was crossing the road from the driver’s side to the left side. There is no footbridge and at the time, she had checked both sides and there was no vehicle. The accident motor vehicle was being driven outside the road. The driver of the accident Motor vehicle states that upon arrival at the scene, he knocked down the Claimant in the process of crossing from the drive’s side to the left. He further said that he applied brakes and hooted, but still hit her. More importantly in this case, is the fact that the Respondent’s driver doesn’t deny that an accident occurred consequent to which the Claimant sustained bodily injuries. The only point of divergence is, according to the driver, the Claimant was the author of the accident and the case should be dismissed.
16. It is in evidence that Kwambira is a market area and the fact that the driver applied brakes and hooted but still struck down the Claimant, is evidence enough that he was on high speed. The police officer who testified said that this is a busy area and it is a disadvantage to pedestrian particularly for children who have difficulties crossing road in their absence. So that driving at 30-40kph as alleged by the driver was not safe in a market area. It was incumbent, therefore, for the driver to hold a high level of caution in this area and within a recommendable speed. In a manner of speaking, there would be people and cars here, people and cars there and people and cars, everywhere. The safe speed therefore, on an occasion like this is, that which will bring the driver out of the area unscathed and free from accident. The speed limit fixed under the Traffic Act is for general good conduct on the part of the drivers. If an accident happens, in the absence of provable circumstances which will exonerate the driver, even travelling at half 30-40kph may not afford a defence in a case of negligence.
17. May I further say, a Motor Vehicle is a lethal machine and as such, its driver must highly be cautious while in control. This is because once it escapes, there is a high propensity to cause devastating damage, but worse, take away lives. Hear these words of Chesoni JA (as he then was) that fell from his lips, in the case of Isabella Wanjiku Karanja Vs Washington Malele Civil Appeal No. 50 of 1991: - “What I find makes the distinction in their blameworthiness is the fact that Isabella had under her control a lethal machine…” By jurisprudential expansion, I must say of Simon Kibaara Kinyua (RW1) “- “What I find makes the distinction in his blameworthiness, is the fact that Simon Kibara Kinyua (RW1) had under his control a lethal machine…” Put differently, Janet Wairimu was not lethal to the machine under the control of Simon Kibara Kinyua (RW1). I therefore hold the Respondent 100% liable for the accident.
18. Putting all these together, I make the following findings;
a. The Appeal is upheld.
b. The Judgement by the trial court on liability is hereby set aside.
c. The Respondent herein is held 100% liable for the accident.
d. Costs to the Appellant.
19. Judgement delivered in Court virtually in the presence of the Court Assistant and absence of the parties this 10th September, 2026.
1. Many are the decisions which set the duties and the tempo of the appellate court, and whereas I may not be able to exhaust them in this Judgement, I must remark from the outset, that an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. However, the difficult of upsetting the finding of the lower court arises, where, the conclusion has been arrived at on conflicting testimony by a trial court which saw and heard the witnesses. Consequently, the appellate court must keep close to its mind, that it has not enjoyed this opportunity and that the view of the trial court, as to where credibility lies, is entitled to great weight. Put differently, the appellate court has to tip-toe, cautiously. To tip-toe cautiously, does not however, mean that the court is infertile to disturb the conclusion arrived by the trial court, where, demeanor and credibility of a witness, cannot be traced in the proceedings. Thus, logic and common sense, put together.
2. In Peters Vs Sunday Post Limited(1958) EA 424, it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide.
3. In Rook Vs Rairrie [1941] 1 ALL E.R. 297 , the principles which guide an appellate court, were echoed with approval by the Court of Appeal in Butt Vs Khan [1981] KLR 349 when it held as per Law, J.A that an appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.
4. In Selle & another Vs Associated Motor Boat Co. Ltd. & others (1968) EA 123 it was stated that the appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the appellate court from a trial by the High Court is by way of retrial and the principles upon which the appellate court acts in such an appeal are well settled. Briefly put, they are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.
5. In the primary suit, the Claimant, Janet Wairimu Mwambia (CW1) told court that om 4th September 2024 at Kwambira Area along Nairobi-Naivasha highway was a pedestrian when the driver of Motor Vehicle Registration Number KCZ 036P so negligently carelessly and /or recklessly that he lost control causing an accident thereby occasioning the Claimant injuries to her leg, hand and lost 3 teeth. The Claimant was taken to Kikuyu Hospital for head scan and then to Thika Hospital for treatment. The Claimant equally adopted her list of documents as exhibits 2-9 respectively.
6. Under cross examination, the claimant said that she did not sustain any fracture as she was treated and discharged the same day. She did not use footbridge as there isn’t any. The accident occurred at the end of the road and was being driven outside the road.
7. PC Idd Ndege(CW2) produced a Police Abstract dated 5th September 2024 with respect to this accident and said that the accident Motor Vehicle was being driven by Simeon Kinyua Kibaara and upon reaching the scene of the accident, the Claimant was knocked down in the process of crossing from right side of the driver to the left and sustained injuries to the hip, back and head. She was issued with a P3 Form which the witness produced as Exhibit 1. The witness further said that this is a busy area and it is a disadvantage to pedestrian particularly for children who have difficulties crossing road in their absence. There is a lot of conflict between vehicles and pedestrians. Pedestrian cross the road at this point. There is no overpass. Under cross examination, the witness said that he did not visit the scene and there is no pedestrian crossing in the area.
8. Simon Kibaara Kinyua (RW1) said that on the fateful day, he was driving from Nairobi to Nakuru and upon arrival at Kwambira area he slowed down when he noticed a woman running from right to left between vehicles and he engaged brakes and hooted but hit her. She took her to the hospital but 50 metres ahead, there was a place the Claimant would have crossed. Under cross examination, he was doing at 30-40 kph and that the Claimant suddenly emerged on the road crossing. He tried to apply the brakes but suddenly hit her. The witness said there is a pedestrian road and there is no stage in the area.
9. In the Judgement delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and proffered an Appeal based on the following grounds;
a. That the Learned Magistrate misapprehended and /or misconceived the tenor, effect and consequences of the evidence tendered in court on behalf of the Appellant as regards to as to the liability of the Respondents and thereby arrived at an erroneous decision.
b. That the Learned Magistrate erred in law and fact by apportioning the appellant 50% liability for the occurrence of the accident despite no evidence supporting the assertion thereof.
c. That the Learned Magistrate erred in law and fact by disregarding the appellant’s duly filed submissions and the binding authorities made on behalf of the appellant without any proper reasons to do so.
d. That the Learned Magistrate erred in law and fact in not exercising her discretion judiciously.
10. The Respondent and the Appellants filed written submissions and relied on them in the determination of this Appeal.
Analysis and Determination:
11. Section 38 of the Small Claims Court Act provides for the jurisdiction of this court in determining appeals from the Small Claims Court. It provides thus; -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.”
12. In the English case of Martin Versus Glywed Distributors Ltd (t/a MBS Fastenings) 1983 ICR 511 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.”
13. Consequently, it is pellucid, that the High Court is clothed with the jurisdiction to hear matters of law and nothing else.
14. This court notes that the appellant settled on 4 grounds for determination. Additionally, I note that the issue of quantum is not a subject of this appeal but liability, is. Looking at the totality of the grounds, I opine that the only issue which recommends itself for determination is whether or not, the Learned Magistrate erred in apportioning liability.
15. In this case, the Claimant said that she was hit as she was crossing the road from the driver’s side to the left side. There is no footbridge and at the time, she had checked both sides and there was no vehicle. The accident motor vehicle was being driven outside the road. The driver of the accident Motor vehicle states that upon arrival at the scene, he knocked down the Claimant in the process of crossing from the drive’s side to the left. He further said that he applied brakes and hooted, but still hit her. More importantly in this case, is the fact that the Respondent’s driver doesn’t deny that an accident occurred consequent to which the Claimant sustained bodily injuries. The only point of divergence is, according to the driver, the Claimant was the author of the accident and the case should be dismissed.
16. It is in evidence that Kwambira is a market area and the fact that the driver applied brakes and hooted but still struck down the Claimant, is evidence enough that he was on high speed. The police officer who testified said that this is a busy area and it is a disadvantage to pedestrian particularly for children who have difficulties crossing road in their absence. So that driving at 30-40kph as alleged by the driver was not safe in a market area. It was incumbent, therefore, for the driver to hold a high level of caution in this area and within a recommendable speed. In a manner of speaking, there would be people and cars here, people and cars there and people and cars, everywhere. The safe speed therefore, on an occasion like this is, that which will bring the driver out of the area unscathed and free from accident. The speed limit fixed under the Traffic Act is for general good conduct on the part of the drivers. If an accident happens, in the absence of provable circumstances which will exonerate the driver, even travelling at half 30-40kph may not afford a defence in a case of negligence.
17. May I further say, a Motor Vehicle is a lethal machine and as such, its driver must highly be cautious while in control. This is because once it escapes, there is a high propensity to cause devastating damage, but worse, take away lives. Hear these words of Chesoni JA (as he then was) that fell from his lips, in the case of Isabella Wanjiku Karanja Vs Washington Malele Civil Appeal No. 50 of 1991: - “What I find makes the distinction in their blameworthiness is the fact that Isabella had under her control a lethal machine…” By jurisprudential expansion, I must say of Simon Kibaara Kinyua (RW1) “- “What I find makes the distinction in his blameworthiness, is the fact that Simon Kibara Kinyua (RW1) had under his control a lethal machine…” Put differently, Janet Wairimu was not lethal to the machine under the control of Simon Kibara Kinyua (RW1). I therefore hold the Respondent 100% liable for the accident.
18. Putting all these together, I make the following findings;
a. The Appeal is upheld.
b. The Judgement by the trial court on liability is hereby set aside.
c. The Respondent herein is held 100% liable for the accident.
d. Costs to the Appellant.
19. Judgement delivered in Court virtually in the presence of the Court Assistant and absence of the parties this 10th September, 2026.