1. This appeal arises from the judgment of the Small Claims Court at Nakuru (Hon. Edward Oboge, RM) delivered on 6 th February 2024 in SCCCOMM No. E036 of 2023. In that judgment, the learned Adjudicator dismissed the Appellant’s claim for the pre-accident value of her motor vehicle, registration number KCX 118 C, which was involved in an accident on 3 rd September 2022 and declared a write-off. The Adjudicator found that the Appellant had breached the terms of her Private Motor Insurance Policy by hiring out the vehicle for reward.
2. Being dissatisfied with the entirety of that decision, the Appellant filed a Memorandum of Appeal dated 15 th February 2024, raising five grounds of appeal. The Respondent did not file any written submissions in opposition to this appeal.
3. This being an appeal from the Small Claims Court, the court's jurisdiction is strictly circumscribed by Section 38 of the Small Claims Court Act, 2016. Section 38(1) provides that:
"A person aggrieved by the decision or order of the Court may appeal against that decision or order to the High Court on matters of law."
4. Consequently, this Court is not sitting as a first appellate court to re-evaluate the factual findings of the Adjudicator. The Court's mandate is limited to determining whether the Adjudicator erred in law, or whether the decision was so perverse that no reasonable tribunal, properly directing its mind to the law and evidence, could have reached it. The Appellant's core ground of appeal that the Adjudicator relied on a disowned witness statement is a quintessential matter of law, invoking the provisions of the Evidence Act and the rules of natural justice.
5. The Appellant was the registered owner of motor vehicle registration number KCX 118 C (Honda Fit), which was comprehensively insured by the Respondent under Policy No. 10/700/0126764. The policy period ran from 7 th January 2022 to 6 th January 2023.
6. On 3 rd September 2022, the Appellant’s brother, John Macharia Mwangi (CW2), was driving the vehicle along the Elburgon-Njoro road when it developed a mechanical problem. He took it to a garage in Elburgon for repairs. During a road test by a mechanic, Samuel Nganga Mburu, the vehicle was involved in an accident and was declared a write-off. The mechanic died in the accident.
7. The Appellant lodged a claim for the pre-accident value of Kshs. 670,000/=, towing fees of Kshs. 40,000/=, and legal expenses of Kshs. 10,000/=. The Respondent repudiated the claim, alleging that the Appellant had breached the policy terms by using the vehicle for hire or reward (specifically, leasing it to G-Bien Car Rental Solutions).
8. The Respondent called three witnesses. RW1, an investigator, produced a report claiming the vehicle was leased to G-Bien Car Rentals. RW3, Charles Mwangi, was summoned as the manager of G-Bien. However, when RW3 took the stand, he expressly denounced the witness statement dated 24 th November 2022 that the Respondent sought to rely on. He testified that he did not author the statement, that the ID and phone number on it were not his, and that the signature was a forgery.
9. Despite this sworn denunciation, the trial magistrate, at paragraph 33 of the judgment, held: “From that evidence, it appears more likely that the witness statement dated 24 th November, 2022 is the statement of Charles Mwangi.” The magistrate proceeded to rely on this disowned statement and the investigator’s report to find that the Appellant had breached the policy terms, dismissing the claim with costs.
10. I have carefully considered the Record of Appeal, the proceedings of the lower court, and the Appellant’s written submissions. The central issue for determination is whether the learned Adjudicator erred in law by relying on a witness statement that was expressly disowned by its maker under oath.
11. The law regarding the evidentiary value of witness statements in civil proceedings is well settled. A written witness statement does not constitute evidence per se. It only becomes evidence when the maker takes the stand, adopts it under oath, and is subjected to cross-examination. Where a witness denounces or disowns their statement on the stand, that statement becomes worthless and cannot form the basis of a judicial finding.
12. This principle was aptly captured in the case of Makanda v Osita (Civil Appeal E213 of 2023) [2025] KEHC 8510 (KLR), where the court held:
“The unsworn witness statement cannot and should not override the sworn testimony of a witness, where there is inconsistency between the unsworn witness statement and the sworn oral testimony of the maker of that unsworn statement, the sworn oral testimony would triumph.”
13. In the instant case, RW3 (Charles Mwangi) categorically stated under oath that the statement dated 24 th November 2022 was not his, that he did not sign it, and that he never sat down with anybody to write it. He also denied knowing the Appellant or the subject motor vehicle. He even stated that the ID number and phone number on the statement were not his.
14. It was therefore a grave misdirection on the part of the learned adjudicator to hold that the statement “appears more likely” to be that of RW3, despite the unequivocal sworn testimony to the contrary. The magistrate essentially elevated an unsworn, disowned document above sworn oral testimony. This was a fundamental error of law that vitiated the entire judgment. Once RW3 denounced the statement, the trial court should have struck it out and disregarded it entirely.
15. Furthermore, the trial magistrate relied on the investigation report (REX1) produced by RW1, which contained the disputed statement. While Section 49 of the Evidence Act allows for expert opinion evidence, the foundational basis of that report was severely compromised once the primary source (RW3) denounced it. The Respondent failed to call any other witness to authenticate the contents of the report or to prove the alleged lease agreement. The evidence of RW1 was largely hearsay and speculative, as he admitted under cross-examination that he did not have a copy of the lease agreement and that the purported owner of G-Bien, Godfrey Karuga, refused to meet him or provide the agreement.
16. The adjudicator also heavily relied on an alleged daily mileage of 92km to infer commercial use. However, this inference was based solely on the discredited investigation report. Without the foundational statement from RW3 or a lease agreement, this inference was speculative and lacked an evidentiary basis. The Appellant’s explanation that the vehicle was on a personal errand and subsequently taken for repairs was never rebutted by any credible evidence.
17. Given that the Respondent failed to file submissions to oppose this appeal, the Appellant’s legal arguments remain uncontroverted. The grounds of appeal are merited. The learned Adjudicator erred in law by relying on a disowned witness statement and unproven documentary evidence, thereby arriving at a wrong decision and occasioning a miscarriage of justice.
18. On the issue of costs, I am guided by the Court of Appeal decision in Farah Awad Gullet v CMC Motors Group Limited [2018] eKLR (Civil Appeal 206 of 2015 ) where the Court of Appeal articulated the law on costs as follows:
“In the light of the above threshold, it is our finding that the position in law is that costs are at the discretion of the court seized of the matter with the usual caveat being that such a discretion should be exercised judiciously, meaning, without caprice or whim and on sound reasoning (see Githiaka versus Nduriri [2004] 2KLR). Secondly that a Court can only withhold costs either partially or wholly from a successful party for good cause to be shown.”
19. Applying this principle to the instant appeal, the Respondent’s failure to defend this appeal, coupled with the Appellant’s success on the merits, leaves no “good cause” to withhold costs. The Respondent’s conduct in repudiating the claim based on a discredited witness statement forced the Appellant to incur the expense of this appeal. The Appellant is therefore entitled to the costs of this appeal as a matter of course.
20. Consequently, the appeal is found to have merit giving rise to the issuance of the following orders;
a) The Judgment and Decree of the Adjudicator (Hon. Edward Oboge) delivered at Nakuru on 6 th February 2024 in Nakuru SCCCOMM No. E036 of 2023 is hereby set aside and substituted with a judgment in favor of the Appellant.
b) Judgment is hereby entered for the Appellant as against the Respondent for the sum of Kshs. 710,000/= (being the pre-accident value of Kshs. 670,000/= and towing fees of Kshs. 40,000/=).
c) The Respondent shall bear the costs of the lower court suit.
d) Interest on (b) and (c) above at court rates from the date of filing the suit in the lower court until payment in full.
e) The Appellant is also awarded the costs of this appeal.
It is so ordered.
Dated, signed, and delivered at Nakuru this 22 nd day of September, 2026.
J. K. SERGON
JUDGE
In the presence of :
Jamleck/Rutoh C/A
Ochang for the Respondent
Odhiambo for the Appellant
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2. Being dissatisfied with the entirety of that decision, the Appellant filed a Memorandum of Appeal dated 15 th February 2024, raising five grounds of appeal. The Respondent did not file any written submissions in opposition to this appeal.
3. This being an appeal from the Small Claims Court, the court's jurisdiction is strictly circumscribed by Section 38 of the Small Claims Court Act, 2016. Section 38(1) provides that:
"A person aggrieved by the decision or order of the Court may appeal against that decision or order to the High Court on matters of law."
4. Consequently, this Court is not sitting as a first appellate court to re-evaluate the factual findings of the Adjudicator. The Court's mandate is limited to determining whether the Adjudicator erred in law, or whether the decision was so perverse that no reasonable tribunal, properly directing its mind to the law and evidence, could have reached it. The Appellant's core ground of appeal that the Adjudicator relied on a disowned witness statement is a quintessential matter of law, invoking the provisions of the Evidence Act and the rules of natural justice.
5. The Appellant was the registered owner of motor vehicle registration number KCX 118 C (Honda Fit), which was comprehensively insured by the Respondent under Policy No. 10/700/0126764. The policy period ran from 7 th January 2022 to 6 th January 2023.
6. On 3 rd September 2022, the Appellant’s brother, John Macharia Mwangi (CW2), was driving the vehicle along the Elburgon-Njoro road when it developed a mechanical problem. He took it to a garage in Elburgon for repairs. During a road test by a mechanic, Samuel Nganga Mburu, the vehicle was involved in an accident and was declared a write-off. The mechanic died in the accident.
7. The Appellant lodged a claim for the pre-accident value of Kshs. 670,000/=, towing fees of Kshs. 40,000/=, and legal expenses of Kshs. 10,000/=. The Respondent repudiated the claim, alleging that the Appellant had breached the policy terms by using the vehicle for hire or reward (specifically, leasing it to G-Bien Car Rental Solutions).
8. The Respondent called three witnesses. RW1, an investigator, produced a report claiming the vehicle was leased to G-Bien Car Rentals. RW3, Charles Mwangi, was summoned as the manager of G-Bien. However, when RW3 took the stand, he expressly denounced the witness statement dated 24 th November 2022 that the Respondent sought to rely on. He testified that he did not author the statement, that the ID and phone number on it were not his, and that the signature was a forgery.
9. Despite this sworn denunciation, the trial magistrate, at paragraph 33 of the judgment, held: “From that evidence, it appears more likely that the witness statement dated 24 th November, 2022 is the statement of Charles Mwangi.” The magistrate proceeded to rely on this disowned statement and the investigator’s report to find that the Appellant had breached the policy terms, dismissing the claim with costs.
10. I have carefully considered the Record of Appeal, the proceedings of the lower court, and the Appellant’s written submissions. The central issue for determination is whether the learned Adjudicator erred in law by relying on a witness statement that was expressly disowned by its maker under oath.
11. The law regarding the evidentiary value of witness statements in civil proceedings is well settled. A written witness statement does not constitute evidence per se. It only becomes evidence when the maker takes the stand, adopts it under oath, and is subjected to cross-examination. Where a witness denounces or disowns their statement on the stand, that statement becomes worthless and cannot form the basis of a judicial finding.
12. This principle was aptly captured in the case of Makanda v Osita (Civil Appeal E213 of 2023) [2025] KEHC 8510 (KLR), where the court held:
“The unsworn witness statement cannot and should not override the sworn testimony of a witness, where there is inconsistency between the unsworn witness statement and the sworn oral testimony of the maker of that unsworn statement, the sworn oral testimony would triumph.”
13. In the instant case, RW3 (Charles Mwangi) categorically stated under oath that the statement dated 24 th November 2022 was not his, that he did not sign it, and that he never sat down with anybody to write it. He also denied knowing the Appellant or the subject motor vehicle. He even stated that the ID number and phone number on the statement were not his.
14. It was therefore a grave misdirection on the part of the learned adjudicator to hold that the statement “appears more likely” to be that of RW3, despite the unequivocal sworn testimony to the contrary. The magistrate essentially elevated an unsworn, disowned document above sworn oral testimony. This was a fundamental error of law that vitiated the entire judgment. Once RW3 denounced the statement, the trial court should have struck it out and disregarded it entirely.
15. Furthermore, the trial magistrate relied on the investigation report (REX1) produced by RW1, which contained the disputed statement. While Section 49 of the Evidence Act allows for expert opinion evidence, the foundational basis of that report was severely compromised once the primary source (RW3) denounced it. The Respondent failed to call any other witness to authenticate the contents of the report or to prove the alleged lease agreement. The evidence of RW1 was largely hearsay and speculative, as he admitted under cross-examination that he did not have a copy of the lease agreement and that the purported owner of G-Bien, Godfrey Karuga, refused to meet him or provide the agreement.
16. The adjudicator also heavily relied on an alleged daily mileage of 92km to infer commercial use. However, this inference was based solely on the discredited investigation report. Without the foundational statement from RW3 or a lease agreement, this inference was speculative and lacked an evidentiary basis. The Appellant’s explanation that the vehicle was on a personal errand and subsequently taken for repairs was never rebutted by any credible evidence.
17. Given that the Respondent failed to file submissions to oppose this appeal, the Appellant’s legal arguments remain uncontroverted. The grounds of appeal are merited. The learned Adjudicator erred in law by relying on a disowned witness statement and unproven documentary evidence, thereby arriving at a wrong decision and occasioning a miscarriage of justice.
18. On the issue of costs, I am guided by the Court of Appeal decision in Farah Awad Gullet v CMC Motors Group Limited [2018] eKLR (Civil Appeal 206 of 2015 ) where the Court of Appeal articulated the law on costs as follows:
“In the light of the above threshold, it is our finding that the position in law is that costs are at the discretion of the court seized of the matter with the usual caveat being that such a discretion should be exercised judiciously, meaning, without caprice or whim and on sound reasoning (see Githiaka versus Nduriri [2004] 2KLR). Secondly that a Court can only withhold costs either partially or wholly from a successful party for good cause to be shown.”
19. Applying this principle to the instant appeal, the Respondent’s failure to defend this appeal, coupled with the Appellant’s success on the merits, leaves no “good cause” to withhold costs. The Respondent’s conduct in repudiating the claim based on a discredited witness statement forced the Appellant to incur the expense of this appeal. The Appellant is therefore entitled to the costs of this appeal as a matter of course.
20. Consequently, the appeal is found to have merit giving rise to the issuance of the following orders;
a) The Judgment and Decree of the Adjudicator (Hon. Edward Oboge) delivered at Nakuru on 6 th February 2024 in Nakuru SCCCOMM No. E036 of 2023 is hereby set aside and substituted with a judgment in favor of the Appellant.
b) Judgment is hereby entered for the Appellant as against the Respondent for the sum of Kshs. 710,000/= (being the pre-accident value of Kshs. 670,000/= and towing fees of Kshs. 40,000/=).
c) The Respondent shall bear the costs of the lower court suit.
d) Interest on (b) and (c) above at court rates from the date of filing the suit in the lower court until payment in full.
e) The Appellant is also awarded the costs of this appeal.
It is so ordered.
Dated, signed, and delivered at Nakuru this 22 nd day of September, 2026.
J. K. SERGON
JUDGE
In the presence of :
Jamleck/Rutoh C/A
Ochang for the Respondent
Odhiambo for the Appellant
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