(Being an Appeal from the Judgment of the Small Claims Court of Kenya at Nairobi delivered by the Hon. Resident Magistrate B. A Luova, on the 29th August, 2023 in Machakos SCCC NO E373 OF 2023)
1. This is an appeal against liability. In the trial court, the Appellant (Claimant) sued the Respondent for negligence arising from an accident that occurred on 13th October 2022. The facts are that the minor was lawfully walking along the pedestrian path of Machakos-Wote Road near Shell Petrol Station when the Respondents, either by themselves or through their agent negligently and carelessly managed Motor Cycle Registration No. KMGE 966V Honda. The motor cycle lost control, veer off the road and hit the minor causing severe bodily injuries and consequently loss and damage.
2. The appellant sought for general damages, special damages of Kshs 4, 200/=, costs of the suit and interest at court rates.
3. In response, the Respondents denied the claim. The matter proceeded to full hearing, where the appellant called two witnesses, the Investigating officer and the minor’s next friend, Bernard K. Peter. The trial court ultimately dismissed the claim with costs to the Respondents.
4. Aggrieved by the judgment, the appellant lodged this appeal raising several grounds. He faulted the learned Trial Adjudicator for; finding that the Appellant failed to prove his claim on a balance of probabilities contrary to the provisions of the Evidence Act; failing to appreciate that the standard of proof in civil cases/claims is lower than in criminal cases; dismissing the appellant’s claim with costs despite uncontroverted evidence; ignoring the testimony of the claimant and his witness, including the police officer and the contents of occurrence book (OB) entries; failing to recognize that the respondents tendered no evidence to rebut the appellant’s case; disregarding settled authorities that liability can be proven without an eye witness, relying instead on circumstantial evidence. ;
5. The appellant prayed that the appeal be allowed with costs, that the judgment on liabilitybe set aside and that the court makes its own finding on liability.
6. The appeal was canvassed by way of written submissions.
Appellant’s submissions
7. The appellant’s submissions are dated 16th June 2025. His appeal raises ten grounds of appeal.
8. On the first ground, the appellant contends that the trial court erred in dismissing the claim solely because no eyewitness testified. He argues that the minor himself witnessed the accident, and his account was relayed through his next friend (CW2). The appellant emphasizes that there is no legal requirement that liability must be proved by an eyewitness. Reliance is placed on Kinogerama FCS Ltd v Mungai & Another (Civil Appeal 311 of 2023) [2024] KEHC 7092 (KLR), where the court held that eyewitness testimony is not mandatory and that circumstantial and investigative evidence can sufficiently establish negligence. He also cites Mbasu & Another v Onyapindi & Cheseny (Civil Appeal E014 of 2023) [2024] KEHC 11716 (KLR), which addressed liability in the absence of direct eyewitnesses.
9. On the second ground, the appellant submits that the trial court failed to properly evaluate the evidence. CW2 testified that the motorcycle was ridden negligently at high speed, lost control, veered off the road, and struck the minor on the pavement. This account was corroborated by CW1, the police officer, who produced the OB extract confirming that the rider lost control and caused the accident. The appellant argues that this consistent and corroborated evidence, together with documentary exhibits and the pleaded doctrine of res ipsa loquitur, was sufficient to establish liability. The trial court therefore erred in disregarding it.
10. On the third ground, is the appellant argues that the Respondents did not tender any evidence to controvert his case. Consequently, his evidence remained unchallenged and uncontroverted. He submits that the trial court failed to appreciate that in the absence of defence evidence, the Respondents did not discharge any burden to rebut his case. Reliance is again placed on Mbasu & another v Onyapindi & Cheseny (Civil Appeal E014 of 2023) [2024] KEHC 11716 (KLR), where the court considered the implications of a party failing to present evidence. Further reliance is placed on Juliana Mulikwa Muindi v Board of Management Yangua Mixed Secondary School & another [2018] eKLR where the court held that failure to adduce evidence renders the opposing party’s case unchallenged, and Trust Bank Limited v Paramount Universal Bank Limited & 2 Others HCCS No. 1243 of 2001 where it was affirmed that pleadings without supporting evidence remain mere statements of fact.
11. On the fourth ground, the Appellant submits that the trial court failed to consider his written submissions filed on 14th August 2023. In those submissions, he had addressed ownership of the motorcycle, the evidence of CW2 and CW1 on how the accident occurred, the corroborative nature of the police evidence and OB report, the applicability of res ipsa loquitur and the fact that the Respondents did not tender any evidence. He had also cited authorities including Juliana Mulikwa Muindi v Board of Management Yangua Mixed Secondary School & another [2018] eKLR and Trust Bank Limited v Paramount Universal Bank Limited & 2 Others HCCS No. 1243 of 2001, to support the argument that unchallenged evidence should be accepted. The appellant contends that the trial court’s failure to consider these submissions amount to an error of law.
12. On costs, the Appellant prays that both the costs of the Appeal and those of the lower court be awarded to him.
13. In conclusion, the Appellant maintains that the appeal is meritorious, having demonstrated that the trial court misdirected itself on both the law and evidence. He urges this court to allow the appeal, set aside the judgment of the lower court and hold the Respondents liable. In support of this position, the Appellant reiterates reliance on Kinogerama FCS Ltd v Mungai & another (Civil Appeal 311 of 2023) [2024] KEHC 7092 (KLR) and Mbasu & another v Onyapindi & Cheseny (Civil Appeal E014 of 2023) [2024] KEHC 11716 (KLR).
Respondent’s submissions
14. The Respondents’ submissions oppose the appeal in its entirety. They argue that the appeal is incompetent both in law and substance. At the outset, they submit that the appeal is improperly before the Court because it does not raise any pure questions of law as required under Section 38(1) of the Small Claims Court Act. Instead, it invites the Court to re-evaluate factual findings already made by the trial court. The Respondents emphasize that the jurisdiction of the High Court in appeals from the Small Claims Court is strictly limited to matters of law and not a rehearing or reconsideration of evidence. They contend that the Appellant’s Memorandum of Appeal, though framed in ten grounds, is entirely anchored on dissatisfaction with factual determinations, particularly the trial court’s conclusion that the case was not proved on a balance of probabilities. In support of this position, reliance is placed on Kinonge v Thika Water & Sewerage Co. Ltd (Civil Appeal 118 of 2023) [2025] KEHC 5067 (KLR), where an appeal was dismissed for failing to raise points of law, and Outsourced Professional Services v International Planned Parenthood (Civil Appeal E684 of 2022) [2024] KEHC 5273 (KLR), where the court struck out an appeal that offended Section 38 of the Act.
15. On the substantive issue of liability, whether the Appellant proved his case on a balance of probabilities grounds 1, 2, 4, 5, 7, 9 and 10), the Respondents submit that the Appellant wholly failed to discharge the burden of proof as required under Section 107(1) of the Evidence Act. They emphasize that negligence must be proved by evidence of fault and that the mere occurrence of an accident does not automatically imply negligence. They argue that the trial court correctly found that the Appellant had not proved negligence.
16. The respondent analysed the evidence, and contend that it was insufficient. CW1, the police officer admitted he was not the investigating officer, did not know the circumstances of the accident and that the police abstract did not attribute blame to any party. They argue that a police abstract is not proof of liability and cannot, without more, establish negligence. In support, they rely on Florence Mutheu Musembi & Geoffrey Mutunga Kimiti v Francis Karenge [2021] eKLR where the court held that a police abstract merely proves that an accident was reported and is not evidence of negligence unless it contains findings of investigations. They also cite Jama Ramadhan Yusuf & Another v Ruth Achieng Onditi & Another [2010] eKLR which emphasized that negligence must be proved through credible evidence and cannot be inferred merely from the occurrence of an accident.
17. With regard to the evidence of the next friend (CW2), the Respondents submit that his testimony was purely hearsay, as he was not present at the scene and only relayed what he had allegedly been told by the minor. They argue that such evidence is inadmissible, unreliable and incapable of establishing liability. They characterize it as uncorroborated hearsay that cannot sustain a finding of negligence. They further assert that the Appellant failed to produce any direct or cogent evidence demonstrating how the Respondents were negligent or how the accident occurred, thereby failing to establish causation and blameworthiness.
18. On the issue of whether the Respondents’ failure to call evidence rendered the Appellant’s case uncontroverted (addressing ground 6), the Respondents submit that the absence of defence evidence does not absolve the Appellant from the duty to prove his case. They argue that uncontroverted evidence must still meet the threshold of credibility and sufficiency. Reliance is placed on Gichinga Kibutha v Caroline Nduku [2018] eKLR where the court held that a claimant must still prove their case even if the evidence is unchallenged and Kenya Power & Lighting Company Limited v Nathan Karanja Gachoka & Another [2016] eKLR which emphasized that uncontroverted evidence must still demonstrate fault and cannot be accepted without scrutiny. The respondents maintain that the trial court properly evaluated the Appellant’s evidence and correctly concluded that it did not meet the required standard.
19. On costs, the Respondents submit that the trial court’s award was proper and consistent with Section 27 of the Civil Procedure Act which vests discretion in the court and establishes the principle that costs follow the event. They argue that as the successful party in the lower court, they were rightly awarded costs. They argued that the same principle should apply in this appeal. Reliance is placed on Republic v Rosemary Wairimu Munene ex parte Ihururu Dairy Farmers Co-operative Society Limited (Judicial Review Application No. 6 of 2014) where the court affirmed that costs are discretionary and are intended to compensate the successful party rather than to punish the losing party.
20. In conclusion, the Respondents submit that the appeal is misconceived, incompetent and an abuse of the court process, as it seeks to reopen factual issues already determined by the trial court in contravention of the statutory limits on appellate jurisdiction. They urge the Court to decline the invitation to re-evaluate facts, uphold the trial court’s findings and dismiss the appeal with costs.
Analysis and Determination
21. This court has considered the grounds of appeal, the proceedings of the lower court and the submissions filed by parties. As a starting point, the duty of this court, sitting as an appellate court under the Small Claims Court is circumscribed by Section 38 of the Small Claims Court Act. This provision limits the jurisdiction of the High Court in appeals from the Small Claims Court to matters of law only.
22. The Court of Appeal in Peter Gichuki King'ara Vs Iebc & 2 Others, Nyeri Civil Appeal No. 31 Of 2013, (Court of Appeal) (Visram, Koome & Odek, JJA) Of 13.02.2014, clarifies what constitutes a point of law. It stated as follows: -
“[I]t is trite law that the exercise of judicial discretion is a point of law and that the trial court in denying a prayer of scrutiny is exercising judicial discretion. The Court concluded that it would not be feasible for the Court of Appeal to order for a recount and scrutiny as this would involve matters of fact that were within the jurisdiction of the trial court. The court further held that the question of whether the trial judge properly considered and evaluated the evidence and arrived at a correct determination that is supported by law and evidence – with the caveat that the appeal court did not see the witness demeanor – is an issue of law.”
23. Guided by the foregoing principles, and having carefully reviewed the record of appeal and the rival submissions, the following issues arise for determination:
a. Whether this Court has jurisdiction to entertain the appeal in light of Section 38 of the Small Claims Court Act, and in particular whether the appeal raises pure points of law.
b. If jurisdiction is properly invoked, whether the learned trial adjudicator erred in law in finding that the Appellant failed to prove liability on a balance of probabilities.
c. Whether the learned trial adjudicator erred in law in the evaluation of the evidence on record
d. Whether the respondents’ failure to adduce evidence had the legal effect of rendering the Appellant’s case uncontroverted and thereby proved.
24. On the first issue Section 38(1) of the Small Claims Court Act is explicit, appeals from the Small Claims Court lie to the High Court “on matters of law only.”
25. Jurisprudence, including Peter Gichuki King'ara v IEBC & 2 Others (Supra) confirms that a point of law extends beyond statutory interpretation. They include instances where a trial court misapprehended the law, applied the wrong legal standard, failed to consider relevant evidence or arrived at a conclusion that is unsupported by the evidence on record. Whether a trial court properly evaluated evidence and applied the correct standard of proof is itself a question of law.
26. In this appeal, although the Respondents argue that the appeal is purely factual, a closer examination of the grounds reveals that the Appellant challenges, the application of the standard of proof, the treatment of uncontroverted evidence, the evidentiary value of witness testimony and the failure to consider submissions and authorities. These are legitimate questions of law. Accordingly, this court finds that it has jurisdiction to entertain the appeal.
27. Turning on to liability, it is trite that in negligence claims, the burden lies on the claimant to prove on a balance of probabilities, that the defendant owed a duty of care, breached that duty and that the breach caused the injury complained of. This principle is anchored in Section 107(1) of the Evidence Act and has been reiterated in numerous decisions of this court. The standard of proof is not proof beyond reasonable doubt but proof on a balance of probabilities. The trial court was therefore required to assess whether, on the evidence presented, it was more probable than not that the Respondents were negligent.
28. The Appellant’s case rested on two witnesses. CW1, the police officer, candidly admitted that he was not the investigating officer and did not know the circumstances under which the accident occurred. The Occurrence Book extract and police abstract did not assign blame. The evidentiary value of a police abstract has been judicially considered in Florence Mutheu Musembi & Geoffrey Mutunga Kimiti v Francis Karenge [2021] eKLR, where the court held that such a document merely confirms that an accident was reported, unless it contains investigative findings, it cannot establish negligence. The court held that;
“36. A police abstract is merely evidence that a report of an accident has been made to the police. Unless it contains information regarding the investigations and their outcome, such evidence cannot without more be evidence of negligence…………..”
29. CW2, the minor’s next friend, did not witness the accident. His testimony was based on what he was allegedly told by the minor. While a next friend may represent a minor, procedurally, it does not elevate second hand narration into primary evidence of how an accident occurred. Such evidence is, in its nature hearsay unless it falls within recognized exceptions and the trial court was entitled, as a matter of law, to treat such evidence with caution.
30. The Appellant invoked the doctrine of res ipsa loquitur . While the doctrine permits an inference of negligence where an accident would not ordinarily occur without negligence and the instrumentality causing harm was under the defendant’s control, it is not a substitute for evidence; it merely permits an inference where foundational facts are established. This was clarified in the Court of Appeal in the case of Tungwa & another v Board of Trustees Pandya Memorial Hospital (Civil Appeal E002 of 2022) [2024] KECA 1916 (KLR) (11 October 2024) (Judgment) in dismissing the ground of appeal raising the application of the doctrine of res ipsa loquitor held as follows;
“24.Regarding the pre-requisites for properly invoking the doctrine of res ipsa loquitur, this Court in Martlin A. Waindi v Pharmaceutical Manufacturing Co. Ltd. & another [1994] eKLR observed that:
“The maxim res ipsa loquitor comes into operation:
1.on proof of the happening of an unexplained occurrence;
2.when the occurrence is one which would not have happened in the ordinary course of things without negligence on the part of somebody other than the plaintiff; and
3.the circumstances point to the negligence in question being that of the defendant, rather than that of any other person. See Charlesworth & Percy on Negligence: (supra) 7th edition at page 350.”
25.In Scott v The London and St Katherine Docks Company (1865) 159 ER 665, Erle CJ also elucidated on the doctrine as follows:
… where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”
26.In our considered view, the learned Judge was not at fault in concluding, on re-evaluating the evidence, that it was not demonstrated to the required standard of proof that the respondent authorised the construction of the wall and that the wall was under its control and/or management. Without demonstrating that the circumstances of the case pointed to the respondent’s negligence, and not of any other person, the appellants could not benefit from the doctrine of res ipsa loquitur to impute liability on the respondent. Consequently, this ground of appeal fails.
31. In the present case, the circumstances of the accident were not independently established through credible evidence. The appellant’s case lacked sufficient proof to demonstrate negligence on the part of the respondents.
32. Accordingly, this court finds no error in the trial court’s conclusion that the Appellant failed to prove negligence on a balance of probabilities. The appeal therefore fails on the substantive issue of liability.
33. On the third issue regarding the evaluation of evidence, the Appellant contends that the trial court failed to properly consider the evidence of CW1 and CW2 together with the documentary exhibits. However, the record shows, the trial court expressly addressed the absence of direct evidence on how the accident occurred and noted the limited probative value of the police testimony. The weight to be attached to evidence is primarily a matter for the trial court and an appellate court will only interfere where it is demonstrated that the trial court misdirected itself in law or failed to consider material evidence. In this case, the Appellant has not shown that the trial court ignored relevant evidence or applied an incorrect legal principle. The complaint is essentially that the court did not accord the evidence the weight the Appellant desired. That, without more, does not amount to an error of law.
34. On the fourth issue, whether the Respondents’ failure to call evidence rendered the Appellant’s case proved, the law is clear that the burden of proof remains on the claimant throughout. The absence of defence evidence does not automatically entitle a claimant to judgment. This principle was succinctly stated in Gichinga Kibutha v Caroline Nduku [2018] eKLR and reaffirmed in Kenya Power & Lighting Company Limited v Nathan Karanja Gachoka & Another [2016] eKLR, where the courts held that even uncontroverted evidence must be scrutinized to determine whether it establishes a case on a balance of probabilities.
35. While it is also true, as held in Trust Bank Limited v Paramount Universal Bank Limited & 2 Others HCCS No. 1243 of 2001 and Juliana Mulikwa Muindi v Board of Management Yangua Mixed Secondary School & another [2018] eKLR, that pleadings without evidence remain mere statements, this principle does not relieve a claimant from establishing a prima facie case. In the present matter, the trial court found that the Appellant’s evidence did not meet that threshold. This Court finds no legal error in that conclusion.
36. On the issue of costs, Section 27 of the Civil Procedure Act vests discretion in the court to award costs, guided by the principle that costs follow the event unless there is good reason to order otherwise. The Respondents, having successfully defended the claim in the lower court were entitled to costs. The exercise of discretion by the trial court has not been shown to have been based on wrong principles or to have been manifestly unjust. There is therefore no basis for this court to interfere with the award of costs.
37. In view of the foregoing analysis, the inevitable conclusion is that the appeal lacks merit. It is hereby dismissed with costs to the Respondents.
Orders accordingly
Delivered, Dated and Signed this 23rd day of April 2026
1. This is an appeal against liability. In the trial court, the Appellant (Claimant) sued the Respondent for negligence arising from an accident that occurred on 13th October 2022. The facts are that the minor was lawfully walking along the pedestrian path of Machakos-Wote Road near Shell Petrol Station when the Respondents, either by themselves or through their agent negligently and carelessly managed Motor Cycle Registration No. KMGE 966V Honda. The motor cycle lost control, veer off the road and hit the minor causing severe bodily injuries and consequently loss and damage.
2. The appellant sought for general damages, special damages of Kshs 4, 200/=, costs of the suit and interest at court rates.
3. In response, the Respondents denied the claim. The matter proceeded to full hearing, where the appellant called two witnesses, the Investigating officer and the minor’s next friend, Bernard K. Peter. The trial court ultimately dismissed the claim with costs to the Respondents.
4. Aggrieved by the judgment, the appellant lodged this appeal raising several grounds. He faulted the learned Trial Adjudicator for; finding that the Appellant failed to prove his claim on a balance of probabilities contrary to the provisions of the Evidence Act; failing to appreciate that the standard of proof in civil cases/claims is lower than in criminal cases; dismissing the appellant’s claim with costs despite uncontroverted evidence; ignoring the testimony of the claimant and his witness, including the police officer and the contents of occurrence book (OB) entries; failing to recognize that the respondents tendered no evidence to rebut the appellant’s case; disregarding settled authorities that liability can be proven without an eye witness, relying instead on circumstantial evidence. ;
5. The appellant prayed that the appeal be allowed with costs, that the judgment on liabilitybe set aside and that the court makes its own finding on liability.
6. The appeal was canvassed by way of written submissions.
Appellant’s submissions
7. The appellant’s submissions are dated 16th June 2025. His appeal raises ten grounds of appeal.
8. On the first ground, the appellant contends that the trial court erred in dismissing the claim solely because no eyewitness testified. He argues that the minor himself witnessed the accident, and his account was relayed through his next friend (CW2). The appellant emphasizes that there is no legal requirement that liability must be proved by an eyewitness. Reliance is placed on Kinogerama FCS Ltd v Mungai & Another (Civil Appeal 311 of 2023) [2024] KEHC 7092 (KLR), where the court held that eyewitness testimony is not mandatory and that circumstantial and investigative evidence can sufficiently establish negligence. He also cites Mbasu & Another v Onyapindi & Cheseny (Civil Appeal E014 of 2023) [2024] KEHC 11716 (KLR), which addressed liability in the absence of direct eyewitnesses.
9. On the second ground, the appellant submits that the trial court failed to properly evaluate the evidence. CW2 testified that the motorcycle was ridden negligently at high speed, lost control, veered off the road, and struck the minor on the pavement. This account was corroborated by CW1, the police officer, who produced the OB extract confirming that the rider lost control and caused the accident. The appellant argues that this consistent and corroborated evidence, together with documentary exhibits and the pleaded doctrine of res ipsa loquitur, was sufficient to establish liability. The trial court therefore erred in disregarding it.
10. On the third ground, is the appellant argues that the Respondents did not tender any evidence to controvert his case. Consequently, his evidence remained unchallenged and uncontroverted. He submits that the trial court failed to appreciate that in the absence of defence evidence, the Respondents did not discharge any burden to rebut his case. Reliance is again placed on Mbasu & another v Onyapindi & Cheseny (Civil Appeal E014 of 2023) [2024] KEHC 11716 (KLR), where the court considered the implications of a party failing to present evidence. Further reliance is placed on Juliana Mulikwa Muindi v Board of Management Yangua Mixed Secondary School & another [2018] eKLR where the court held that failure to adduce evidence renders the opposing party’s case unchallenged, and Trust Bank Limited v Paramount Universal Bank Limited & 2 Others HCCS No. 1243 of 2001 where it was affirmed that pleadings without supporting evidence remain mere statements of fact.
11. On the fourth ground, the Appellant submits that the trial court failed to consider his written submissions filed on 14th August 2023. In those submissions, he had addressed ownership of the motorcycle, the evidence of CW2 and CW1 on how the accident occurred, the corroborative nature of the police evidence and OB report, the applicability of res ipsa loquitur and the fact that the Respondents did not tender any evidence. He had also cited authorities including Juliana Mulikwa Muindi v Board of Management Yangua Mixed Secondary School & another [2018] eKLR and Trust Bank Limited v Paramount Universal Bank Limited & 2 Others HCCS No. 1243 of 2001, to support the argument that unchallenged evidence should be accepted. The appellant contends that the trial court’s failure to consider these submissions amount to an error of law.
12. On costs, the Appellant prays that both the costs of the Appeal and those of the lower court be awarded to him.
13. In conclusion, the Appellant maintains that the appeal is meritorious, having demonstrated that the trial court misdirected itself on both the law and evidence. He urges this court to allow the appeal, set aside the judgment of the lower court and hold the Respondents liable. In support of this position, the Appellant reiterates reliance on Kinogerama FCS Ltd v Mungai & another (Civil Appeal 311 of 2023) [2024] KEHC 7092 (KLR) and Mbasu & another v Onyapindi & Cheseny (Civil Appeal E014 of 2023) [2024] KEHC 11716 (KLR).
Respondent’s submissions
14. The Respondents’ submissions oppose the appeal in its entirety. They argue that the appeal is incompetent both in law and substance. At the outset, they submit that the appeal is improperly before the Court because it does not raise any pure questions of law as required under Section 38(1) of the Small Claims Court Act. Instead, it invites the Court to re-evaluate factual findings already made by the trial court. The Respondents emphasize that the jurisdiction of the High Court in appeals from the Small Claims Court is strictly limited to matters of law and not a rehearing or reconsideration of evidence. They contend that the Appellant’s Memorandum of Appeal, though framed in ten grounds, is entirely anchored on dissatisfaction with factual determinations, particularly the trial court’s conclusion that the case was not proved on a balance of probabilities. In support of this position, reliance is placed on Kinonge v Thika Water & Sewerage Co. Ltd (Civil Appeal 118 of 2023) [2025] KEHC 5067 (KLR), where an appeal was dismissed for failing to raise points of law, and Outsourced Professional Services v International Planned Parenthood (Civil Appeal E684 of 2022) [2024] KEHC 5273 (KLR), where the court struck out an appeal that offended Section 38 of the Act.
15. On the substantive issue of liability, whether the Appellant proved his case on a balance of probabilities grounds 1, 2, 4, 5, 7, 9 and 10), the Respondents submit that the Appellant wholly failed to discharge the burden of proof as required under Section 107(1) of the Evidence Act. They emphasize that negligence must be proved by evidence of fault and that the mere occurrence of an accident does not automatically imply negligence. They argue that the trial court correctly found that the Appellant had not proved negligence.
16. The respondent analysed the evidence, and contend that it was insufficient. CW1, the police officer admitted he was not the investigating officer, did not know the circumstances of the accident and that the police abstract did not attribute blame to any party. They argue that a police abstract is not proof of liability and cannot, without more, establish negligence. In support, they rely on Florence Mutheu Musembi & Geoffrey Mutunga Kimiti v Francis Karenge [2021] eKLR where the court held that a police abstract merely proves that an accident was reported and is not evidence of negligence unless it contains findings of investigations. They also cite Jama Ramadhan Yusuf & Another v Ruth Achieng Onditi & Another [2010] eKLR which emphasized that negligence must be proved through credible evidence and cannot be inferred merely from the occurrence of an accident.
17. With regard to the evidence of the next friend (CW2), the Respondents submit that his testimony was purely hearsay, as he was not present at the scene and only relayed what he had allegedly been told by the minor. They argue that such evidence is inadmissible, unreliable and incapable of establishing liability. They characterize it as uncorroborated hearsay that cannot sustain a finding of negligence. They further assert that the Appellant failed to produce any direct or cogent evidence demonstrating how the Respondents were negligent or how the accident occurred, thereby failing to establish causation and blameworthiness.
18. On the issue of whether the Respondents’ failure to call evidence rendered the Appellant’s case uncontroverted (addressing ground 6), the Respondents submit that the absence of defence evidence does not absolve the Appellant from the duty to prove his case. They argue that uncontroverted evidence must still meet the threshold of credibility and sufficiency. Reliance is placed on Gichinga Kibutha v Caroline Nduku [2018] eKLR where the court held that a claimant must still prove their case even if the evidence is unchallenged and Kenya Power & Lighting Company Limited v Nathan Karanja Gachoka & Another [2016] eKLR which emphasized that uncontroverted evidence must still demonstrate fault and cannot be accepted without scrutiny. The respondents maintain that the trial court properly evaluated the Appellant’s evidence and correctly concluded that it did not meet the required standard.
19. On costs, the Respondents submit that the trial court’s award was proper and consistent with Section 27 of the Civil Procedure Act which vests discretion in the court and establishes the principle that costs follow the event. They argue that as the successful party in the lower court, they were rightly awarded costs. They argued that the same principle should apply in this appeal. Reliance is placed on Republic v Rosemary Wairimu Munene ex parte Ihururu Dairy Farmers Co-operative Society Limited (Judicial Review Application No. 6 of 2014) where the court affirmed that costs are discretionary and are intended to compensate the successful party rather than to punish the losing party.
20. In conclusion, the Respondents submit that the appeal is misconceived, incompetent and an abuse of the court process, as it seeks to reopen factual issues already determined by the trial court in contravention of the statutory limits on appellate jurisdiction. They urge the Court to decline the invitation to re-evaluate facts, uphold the trial court’s findings and dismiss the appeal with costs.
Analysis and Determination
21. This court has considered the grounds of appeal, the proceedings of the lower court and the submissions filed by parties. As a starting point, the duty of this court, sitting as an appellate court under the Small Claims Court is circumscribed by Section 38 of the Small Claims Court Act. This provision limits the jurisdiction of the High Court in appeals from the Small Claims Court to matters of law only.
22. The Court of Appeal in Peter Gichuki King'ara Vs Iebc & 2 Others, Nyeri Civil Appeal No. 31 Of 2013, (Court of Appeal) (Visram, Koome & Odek, JJA) Of 13.02.2014, clarifies what constitutes a point of law. It stated as follows: -
“[I]t is trite law that the exercise of judicial discretion is a point of law and that the trial court in denying a prayer of scrutiny is exercising judicial discretion. The Court concluded that it would not be feasible for the Court of Appeal to order for a recount and scrutiny as this would involve matters of fact that were within the jurisdiction of the trial court. The court further held that the question of whether the trial judge properly considered and evaluated the evidence and arrived at a correct determination that is supported by law and evidence – with the caveat that the appeal court did not see the witness demeanor – is an issue of law.”
23. Guided by the foregoing principles, and having carefully reviewed the record of appeal and the rival submissions, the following issues arise for determination:
a. Whether this Court has jurisdiction to entertain the appeal in light of Section 38 of the Small Claims Court Act, and in particular whether the appeal raises pure points of law.
b. If jurisdiction is properly invoked, whether the learned trial adjudicator erred in law in finding that the Appellant failed to prove liability on a balance of probabilities.
c. Whether the learned trial adjudicator erred in law in the evaluation of the evidence on record
d. Whether the respondents’ failure to adduce evidence had the legal effect of rendering the Appellant’s case uncontroverted and thereby proved.
24. On the first issue Section 38(1) of the Small Claims Court Act is explicit, appeals from the Small Claims Court lie to the High Court “on matters of law only.”
25. Jurisprudence, including Peter Gichuki King'ara v IEBC & 2 Others (Supra) confirms that a point of law extends beyond statutory interpretation. They include instances where a trial court misapprehended the law, applied the wrong legal standard, failed to consider relevant evidence or arrived at a conclusion that is unsupported by the evidence on record. Whether a trial court properly evaluated evidence and applied the correct standard of proof is itself a question of law.
26. In this appeal, although the Respondents argue that the appeal is purely factual, a closer examination of the grounds reveals that the Appellant challenges, the application of the standard of proof, the treatment of uncontroverted evidence, the evidentiary value of witness testimony and the failure to consider submissions and authorities. These are legitimate questions of law. Accordingly, this court finds that it has jurisdiction to entertain the appeal.
27. Turning on to liability, it is trite that in negligence claims, the burden lies on the claimant to prove on a balance of probabilities, that the defendant owed a duty of care, breached that duty and that the breach caused the injury complained of. This principle is anchored in Section 107(1) of the Evidence Act and has been reiterated in numerous decisions of this court. The standard of proof is not proof beyond reasonable doubt but proof on a balance of probabilities. The trial court was therefore required to assess whether, on the evidence presented, it was more probable than not that the Respondents were negligent.
28. The Appellant’s case rested on two witnesses. CW1, the police officer, candidly admitted that he was not the investigating officer and did not know the circumstances under which the accident occurred. The Occurrence Book extract and police abstract did not assign blame. The evidentiary value of a police abstract has been judicially considered in Florence Mutheu Musembi & Geoffrey Mutunga Kimiti v Francis Karenge [2021] eKLR, where the court held that such a document merely confirms that an accident was reported, unless it contains investigative findings, it cannot establish negligence. The court held that;
“36. A police abstract is merely evidence that a report of an accident has been made to the police. Unless it contains information regarding the investigations and their outcome, such evidence cannot without more be evidence of negligence…………..”
29. CW2, the minor’s next friend, did not witness the accident. His testimony was based on what he was allegedly told by the minor. While a next friend may represent a minor, procedurally, it does not elevate second hand narration into primary evidence of how an accident occurred. Such evidence is, in its nature hearsay unless it falls within recognized exceptions and the trial court was entitled, as a matter of law, to treat such evidence with caution.
30. The Appellant invoked the doctrine of res ipsa loquitur . While the doctrine permits an inference of negligence where an accident would not ordinarily occur without negligence and the instrumentality causing harm was under the defendant’s control, it is not a substitute for evidence; it merely permits an inference where foundational facts are established. This was clarified in the Court of Appeal in the case of Tungwa & another v Board of Trustees Pandya Memorial Hospital (Civil Appeal E002 of 2022) [2024] KECA 1916 (KLR) (11 October 2024) (Judgment) in dismissing the ground of appeal raising the application of the doctrine of res ipsa loquitor held as follows;
“24.Regarding the pre-requisites for properly invoking the doctrine of res ipsa loquitur, this Court in Martlin A. Waindi v Pharmaceutical Manufacturing Co. Ltd. & another [1994] eKLR observed that:
“The maxim res ipsa loquitor comes into operation:
1.on proof of the happening of an unexplained occurrence;
2.when the occurrence is one which would not have happened in the ordinary course of things without negligence on the part of somebody other than the plaintiff; and
3.the circumstances point to the negligence in question being that of the defendant, rather than that of any other person. See Charlesworth & Percy on Negligence: (supra) 7th edition at page 350.”
25.In Scott v The London and St Katherine Docks Company (1865) 159 ER 665, Erle CJ also elucidated on the doctrine as follows:
… where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”
26.In our considered view, the learned Judge was not at fault in concluding, on re-evaluating the evidence, that it was not demonstrated to the required standard of proof that the respondent authorised the construction of the wall and that the wall was under its control and/or management. Without demonstrating that the circumstances of the case pointed to the respondent’s negligence, and not of any other person, the appellants could not benefit from the doctrine of res ipsa loquitur to impute liability on the respondent. Consequently, this ground of appeal fails.
31. In the present case, the circumstances of the accident were not independently established through credible evidence. The appellant’s case lacked sufficient proof to demonstrate negligence on the part of the respondents.
32. Accordingly, this court finds no error in the trial court’s conclusion that the Appellant failed to prove negligence on a balance of probabilities. The appeal therefore fails on the substantive issue of liability.
33. On the third issue regarding the evaluation of evidence, the Appellant contends that the trial court failed to properly consider the evidence of CW1 and CW2 together with the documentary exhibits. However, the record shows, the trial court expressly addressed the absence of direct evidence on how the accident occurred and noted the limited probative value of the police testimony. The weight to be attached to evidence is primarily a matter for the trial court and an appellate court will only interfere where it is demonstrated that the trial court misdirected itself in law or failed to consider material evidence. In this case, the Appellant has not shown that the trial court ignored relevant evidence or applied an incorrect legal principle. The complaint is essentially that the court did not accord the evidence the weight the Appellant desired. That, without more, does not amount to an error of law.
34. On the fourth issue, whether the Respondents’ failure to call evidence rendered the Appellant’s case proved, the law is clear that the burden of proof remains on the claimant throughout. The absence of defence evidence does not automatically entitle a claimant to judgment. This principle was succinctly stated in Gichinga Kibutha v Caroline Nduku [2018] eKLR and reaffirmed in Kenya Power & Lighting Company Limited v Nathan Karanja Gachoka & Another [2016] eKLR, where the courts held that even uncontroverted evidence must be scrutinized to determine whether it establishes a case on a balance of probabilities.
35. While it is also true, as held in Trust Bank Limited v Paramount Universal Bank Limited & 2 Others HCCS No. 1243 of 2001 and Juliana Mulikwa Muindi v Board of Management Yangua Mixed Secondary School & another [2018] eKLR, that pleadings without evidence remain mere statements, this principle does not relieve a claimant from establishing a prima facie case. In the present matter, the trial court found that the Appellant’s evidence did not meet that threshold. This Court finds no legal error in that conclusion.
36. On the issue of costs, Section 27 of the Civil Procedure Act vests discretion in the court to award costs, guided by the principle that costs follow the event unless there is good reason to order otherwise. The Respondents, having successfully defended the claim in the lower court were entitled to costs. The exercise of discretion by the trial court has not been shown to have been based on wrong principles or to have been manifestly unjust. There is therefore no basis for this court to interfere with the award of costs.
37. In view of the foregoing analysis, the inevitable conclusion is that the appeal lacks merit. It is hereby dismissed with costs to the Respondents.
Orders accordingly
Delivered, Dated and Signed this 23rd day of April 2026