(Being an appeal from the judgment of Hon. B. A. Akinyi, Resident Magistrate and Adjudicator, delivered on 31st July 2024 in Small Claims Court Case No. SCC/E5607/2023 at Milimani)
A. BACKGROUND
1. This is a first appeal from the Small Claims Court. The r espondent, Silas Kimani Mwangi, instituted a material-damage recovery claim against the A ppellant, Peter Mwenda Karuma, in Small Claims Court Case No. SCC/E5607/2023, arising from a road traffic accident said to have occurred along Thika Road on or about 20th September 2022 involving the R espondent’s motor vehicle registration number KCN 178Y and the A ppellant’s motor vehicle registration number KAX 601T.
2. The claim, which proceeded by way of documents pursuant to section 30 of the Small Claims Court Act, sought special damages of Kshs. 365,768/=, together with costs and interest.
3. By a judgment delivered on 31st July 2024, the learned Adjudicator found the A ppellant wholly liable for the accident and awarded the R espondent special damages, costs and interest.
4. Aggrieved, the A ppellant filed a Memorandum of Appeal dated 30th August 2024 raising nine grounds, the substance of which is that the trial court erred in apportioning 100% liability on the strength of an uncorroborated police abstract, and in relying on assessment documentation that fell short of the threshold for proof of special damages.
5. The appeal was canvassed by way of written submissions, the A ppellant having filed submissions dated 21st October 2025 and supplementary submissions dated 23rd May 2026, and the R espondent his submissions in reply.
B. THE APPELLANT’S SUBMISSIONS
6. On liability, the A ppellant submits that the learned Adjudicator misdirected herself by treating the police abstract as conclusive proof of liability contrary to section 35 of the Evidence Act.
7. The abstract, he says, merely recorded that an accident had been reported; the officer who produced it was neither the Investigating Officer nor an eyewitness and was not called to testify, rendering its contents hearsay. No accident sketch, scene photographs, occurrence-book extract or Investigating Officer’s testimony was adduced.
8. Relying on Kasaam Hauliers Limited & another v Shreeji Enterprises [2025] KEHC 12039 (KLR) and Dikir & another v Kimary [2022] KEHC 12733 (KLR), the A ppellant contends that liability ought to have been apportioned equally in the absence of corroborating evidence.
9. In his supplementary submissions, the A ppellant adds that the burden of proof under sections 107 to 109 of the Evidence Act lay throughout on the R espondent and never shifted, and that the Adjudicator effectively required him to rebut the abstract, thereby reversing the statutory scheme.
10. He contends that the witness statement of Ms Vivian Kibathi, the legal officer of the respondent’s insurer, being a statement by an interested person made in anticipation of proceedings, was inadmissible under section 35(3) to prove the disputed facts.
11. He further invokes section 4 of the Law Reform Act, section 47(1) of the Traffic Act and the Highway Code, arguing that the respondent’s unindicated swerve into his lane followed by sudden braking amounted to contributory negligence which the trial court failed to consider, citing Lakhamshi v Attorney General [1971] EA 118 and Patrick Muriithi Mumbi & another v Moses Kahindi Karisa [2020] KEHC 2933 (KLR).
12. On quantum, the A ppellant submits that the special damages were not strictly proved. The Integrated Motor Assessors report bore unexplained handwritten alterations of unknown authorship; no certified receipts for repairs from a registered garage were produced; and the proof rested on documents emanating from an interested insurer. Relying on Hahn v Singh [1985] KLR 716 and Mohammed Ali & another v Sagoo Radiators Limited [2013] KECA 163 (KLR), he contends that an assessor’s estimate unsupported by receipts cannot strictly prove special damages, and prays that the appeal be allowed, the judgment set aside and the claim dismissed, or in the alternative that liability be apportioned equally and the award reduced.
C. THE RESPONDENT’S SUBMISSIONS
13. As a threshold matter, the R espondent submits that this is an appeal under section 38(1) of the Small Claims Court Act, which confines appeals from that court to the High Court to matters of law alone. Relying on Fidelity Insurance Company Ltd v Korir [2024] KEHC 3365 (KLR) and Directline Assurance Co. Ltd v Nyawa [2023] KEHC 20201 (KLR), the R espondent contends that this court may not substitute its own appreciation of the facts for that of the trial court unless the findings are so perverse that no reasonable tribunal could have arrived at them, and that only a finding founded on no evidence at all constitutes a point of law.
14. Liability, the R espondent urges, is a factual issue ( Nderitu & another v Chesire [2025] KEHC 7149 (KLR)), and the appellant having dressed factual complaints as points of law, the grounds offend section 38 and ought to be struck out ( Bashir Haji Abdullahi v Adan Mohamed Nooru & 3 others [2014] KECA 621 (KLR)).
15. Without prejudice to that objection, the R espondent submits that the finding on liability was amply supported. His adopted witness statement was that the A ppellant’s vehicle, travelling at speed behind him, violently rammed the rear of his vehicle and propelled it into a third vehicle ahead. Having established the particulars of negligence, the evidential burden shifted to the A ppellant and the A ppellant’s uncorroborated account of a sudden swerve did not discharge it.
16. On quantum, the R espondent submits that the suit was a material-damage recovery claim in which, per Nkuene Dairy Farmers Cooperative Society Ltd & another v Ngacha Ndeiya [2010] eKLR , as applied in Linus Fredrick Msaky v Lazaro Thuram Richoro & another [2016] KEHC 5907 (KLR)), special damages need not be shown to have been actually paid; it suffices to establish the extent of the damage and the cost of restoration through an assessor.
17. The assessment report and the receipts were admitted into evidence without objection, the A ppellant led no contrary expert evidence, and he is estopped from impugning documents he allowed in unchallenged.
18. The R espondent prays that the appeal be dismissed with costs.
D. ISSUES FOR DETERMINATION
19. Having considered the pleadings, the record of appeal and the rival submissions, the issues that fall for determination are two:
(a)Whether, having regard to the appellate jurisdiction conferred by section 38 of the Small Claims Court Act, the learned Adjudicator erred in apportioning 100% liability for the accident to the appellant; and
(b)Whether the Respondent strictly proved the special damages awarded.
E. ANALYSIS AND DETERMINATION
20. It is convenient to begin with the nature of this court’s jurisdiction, for it frames everything that follows. Section 38(1) of the Small Claims Court Act, 2016 provides that an appeal from the Small Claims Court to the High Court lies only on matters of law. This is not the conventional first appeal in which the court is at large to re-hear and re-evaluate the entire evidence in the manner described in Selle & Another v Associated Motor Boat Company Ltd [1968] EA 123.
21. As the court observed in Directline Assurance Co. Ltd v Nyawa [2023] KEHC 20201 (KLR), an appeal from the Small Claims Court is a first and last appeal on points of law, and a finding of fact will be disturbed only where it rests on no evidence. So too in Fidelity Insurance Company Ltd v Korir [2024] KEHC 3365 (KLR) , the court held that the High Court may not substitute its own conclusions on the facts unless the findings are so perverse that no reasonable tribunal would have reached them.
22. It follows that the A ppellant’s invitation, founded on Selle and the line of ordinary civil appeals such as Mwangi v Moseti [2024] KEHC 12001 (KLR) , to re-weigh the whole of the evidence cannot be accepted at face value; the threshold is the higher one of perversity or want of any evidential foundation.
23. That said, the boundary between law and fact is not impermeable. It is settled that a decision is erroneous in law where it is one to which no reasonable court, properly directing itself, could have come ( Twaher Abdulkarim Mohamed v Independent Electoral and Boundaries Commission & 2 others [2014] KEHC 6867 (KLR) , adopting Bracegirdle v Oxney ) . A finding founded on no evidence, or one reached by misapprehending the legal standard of proof, is therefore reviewable even on a points-of-law appeal.
24. The real question on the first issue is accordingly not whether this court would itself have apportioned liability differently, but whether the A ppellant has demonstrated that the finding of 100% liability was reached on no evidence at all, or upon a wrong principle of law.
25. The A ppellant’s legal premise is, in itself, unimpeachable. A police abstract is not conclusive proof of liability; it is evidence only that an accident was reported at a given station, and its contents must be substantiated. Where the Investigating Officer is not called, and the officer who produced the abstract neither investigated nor witnessed the accident, the abstract’s narrative as to blame is hearsay and of no probative value on the question of who caused the accident. That is the effect of Dikir & another v Kimary [2022] KEHC 12733 (KLR) where Majanja J stated that:
“Since the Investigating Officer was not called as testify as to the circumstances of the accident, the reports produced amount to hearsay evidence and cannot be proof of how the accident took place. At the very least, the report is only proof that the accident involving several motor vehicles took place on the material date (see Peter Kanithi Kimunya v Aden Guyo Haro NRB HCCA No. 307 of 2008 [2014] eKLR ). As to which party was to blame for the accident is a question of evidence and the remarks in the OB about blameworthiness is hearsay as the investigating officer was not called a witness. The conclusion therein are matters of opinion which are inadmissible to prove facts.”
26. Also see Kasaam Hauliers Limited & another v Shreeji Enterprises [2025] KEHC 12039 (KLR) where Matheka J held that the abstract standing alone and the parties’ drivers being unavailable, the court finds it impossible to apportion blame and divided liability equally under Lakhamshi v Attorney General [1971] EA 118. Were the present record confined to the abstract, the A ppellant’s argument would be formidable.
27. The difficulty for the A ppellant is that the record is not confined to the abstract. The claim proceeded by documents under section 30 of the Small Claims Court Act, and those documents included the sworn accounts of both parties. The R espondent’s adopted statement was direct evidence of how the accident occurred and not merely that an accident had occurred.
28. Decisively, the A ppellant’s own witness statement does not place his vehicle anywhere other than to the rear: at paragraph 7 he complains that the police “presumed the motor vehicle on the rear was to blame and hence blamed me.” The appellant thus accepted the central spatial fact that he was the following vehicle and quarrelled only with the inference drawn from it. This is a materially different evidential situation from Kasaam Hauliers and Dikir , where there was no account at all of the mechanics of the collision.
29. The legal significance of that admitted fact is considerable. A following driver is required to keep such distance from the vehicle ahead as will enable him to stop safely should that vehicle brake, and to remain vigilant so as to control his vehicle in an emergency . See: Highway Code, Regulation 50 and Fal Azad & another v Peter Mubua Karanja & 2 others [2016] KEHC 6956 (KLR) , where Mulwa J held that a driver who keeps a safe distance and a reasonable speed will be able to brake and avoid running into the vehicle ahead . A rear-end collision by a following vehicle therefore raises a prima facie inference of negligence against that driver, calling for an explanation.
30. This disposes of the A ppellant’s complaint that the trial court reversed the burden of proof. The legal burden under sections 107 to 109 of the Evidence Act remained on the R espondent throughout. But once the R espondent had laid a prima facie case , the rear-end account, the abstract attributing blame to the A ppellant’s vehicle, and the appellant’s own acceptance that he was behind , the evidential burden shifted to the A ppellant to displace that inference .
31. What the A ppellant offered in response was a bare assertion that the R espondent had swerved into his lane without indicating and then braked suddenly. That assertion stood uncorroborated by any sketch, photograph or independent testimony, and the Adjudicator was entitled, on the documents before her, to find it unpersuasive. Read fairly, her observation that the A ppellant “provided no evidence to rebut” the abstract is not a reversal of the legal burden but a recognition that the evidential burden, once shifted, had not been discharged.
32. Nor does the doctrine of contributory negligence assist the A ppellant. Section 4 of the Law Reform Act, and an apportionment under Lakhamshi , presuppose evidence that more than one party was at fault, or that the evidence is so evenly balanced that blame cannot be attributed to either.
33. As the Court of Appeal explained in the passage adopted in Patrick Muriithi Mumbi & another v Moses Kahindi Karisa [2020] KEHC 2933 (KLR), equal apportionment is appropriate “where there is no evidence to establish that any party was negligent.” That is not this case. Here there was evidence pointing to the A ppellant’s negligence, and no credible evidence of negligence on the R espondent’s part, the alleged swerve having been rejected.
34. There being a proper basis to attribute fault, there was no occasion for an equal split. The finding of 100% liability was therefore neither founded on no evidence nor reached on a wrong principle; it was a finding of fact reasonably open to the Adjudicator, and the grounds attacking it amount, in substance, to an invitation to re-try the facts that section 38 does not permit. The first issue is answered in the negative.
35. Turning to the second issue, the A ppellant submitted that special damages must be specifically pleaded and strictly proved ( Hahn v Singh [1985] KLR 716) However, the content of “strict proof” varies with the nature of the claim. This was a material-damage recovery claim, and the governing principle is that stated by the Court of Appeal in Nkuene Dairy Farmers Cooperative Society Ltd & another v Ngacha Ndeiya [2010] eKLR and applied by Aburili J in Linus Fredrick Msaky v Lazaro Thuram Richoro & another [2016] KEHC 5907 (KLR) :
“In our view special damages in a material damage claim need not be shown to have actually been incurred. The claimant is only required to show the extent of the damage and what it would cost to restore the damaged item to as near as possible the condition it was in before the damage complained of. We think the particulars of damage and the value of the repairs were given with some degree of certainty. In Ratcliffe v. Evans [1892]2QB 524 Bowen L.J. said:
“The character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pendantry.”
Motor vehicle parts are sold in shops. An assessor, we think would be in a position to know their cost. The prices may vary from one shop to another but the prices are nonetheless ascertainable even without purchasing the item and fixing it on the damaged vehicle. Motor vehicle parts are common items and any price which the assessor might have given could be counter checked and either accepted or disproved. The appellants having not questioned those prices must be taken to have accepted the report as representing the correct market prices of the various parts which were shown on the Assessor’s report.”
36. Tellingly, the very authority on which the A ppellant relies, Mohammed Ali & another v Sagoo Radiators Limited [2013] KECA 163 (KLR), is against him. There the Court of Appeal, applying Nkuene Dairy , held that an assessor’s itemised estimate of repair costs was sufficient proof of special damages and that the absence of receipts or payment vouchers did not defeat the claim; the appeal was accordingly dismissed. The case is the opposite of the proposition for which it was cited.
37. In the present matter the R espondent produced an assessment report and a re-inspection report itemising the damage to KCN 178Y, and these were admitted into evidence without objection. The A ppellant led no contrary expert evidence, and an assessor’s report of this character can ordinarily be displaced only by other expert evidence.
38. The remaining objections of the handwritten alterations on the assessors’ report, the absence of a garage certificate of registration, and the involvement of the insurer’s officer go to the weight and admissibility of evidence that was received at trial without objection.
39. A party who allows a document to be produced without challenge cannot ordinarily resurrect its admissibility on appeal; as observed in Wellington Nganga Muthiora v Akamba Public Road Services Ltd & another [2010] 2 KLR 39 , it is too late to close the stable after the horse has bolted.
40. There is, moreover, no rule of law requiring a garage to produce a certificate of registration before a repair cost can be proved . T he suggested threshold is not grounded in any authority. These complaints are, once again, factual matters touching the assessment of evidence, and fall outside the narrow compass of a section 38 appeal. The award of special damages discloses no error of law, and the second issue is likewise answered in the negative.
F. CONCLUSION AND DISPOSITION
41. In the result, the A ppellant has not demonstrated that the finding on liability was reached on no evidence or upon a wrong principle, nor that the award of special damages was vitiated by any error of law. Both issues having been answered against the A ppellant, the appeal is without merit.
42. Accordingly, the court makes the following orders:
(a)The appeal is dismissed in its entirety.
(b)The judgment and decree of the Small Claims Court in Case No. SCC/E5607/2023, delivered on 31st July 2024, are upheld.
(c)The Appellant shall bear the costs of the appeal.
Dated and Delivered at Nairobi this 25th day of June 2026.
BENARD WAFULA MURUNGA
JUDGE OF THE HIGH COURT
Delivered on a virtual platform in the presence of:
Maosa for Appellants
Muthiani for Respondents
Kevin Babu - Court Assistant
A. BACKGROUND
1. This is a first appeal from the Small Claims Court. The r espondent, Silas Kimani Mwangi, instituted a material-damage recovery claim against the A ppellant, Peter Mwenda Karuma, in Small Claims Court Case No. SCC/E5607/2023, arising from a road traffic accident said to have occurred along Thika Road on or about 20th September 2022 involving the R espondent’s motor vehicle registration number KCN 178Y and the A ppellant’s motor vehicle registration number KAX 601T.
2. The claim, which proceeded by way of documents pursuant to section 30 of the Small Claims Court Act, sought special damages of Kshs. 365,768/=, together with costs and interest.
3. By a judgment delivered on 31st July 2024, the learned Adjudicator found the A ppellant wholly liable for the accident and awarded the R espondent special damages, costs and interest.
4. Aggrieved, the A ppellant filed a Memorandum of Appeal dated 30th August 2024 raising nine grounds, the substance of which is that the trial court erred in apportioning 100% liability on the strength of an uncorroborated police abstract, and in relying on assessment documentation that fell short of the threshold for proof of special damages.
5. The appeal was canvassed by way of written submissions, the A ppellant having filed submissions dated 21st October 2025 and supplementary submissions dated 23rd May 2026, and the R espondent his submissions in reply.
B. THE APPELLANT’S SUBMISSIONS
6. On liability, the A ppellant submits that the learned Adjudicator misdirected herself by treating the police abstract as conclusive proof of liability contrary to section 35 of the Evidence Act.
7. The abstract, he says, merely recorded that an accident had been reported; the officer who produced it was neither the Investigating Officer nor an eyewitness and was not called to testify, rendering its contents hearsay. No accident sketch, scene photographs, occurrence-book extract or Investigating Officer’s testimony was adduced.
8. Relying on Kasaam Hauliers Limited & another v Shreeji Enterprises [2025] KEHC 12039 (KLR) and Dikir & another v Kimary [2022] KEHC 12733 (KLR), the A ppellant contends that liability ought to have been apportioned equally in the absence of corroborating evidence.
9. In his supplementary submissions, the A ppellant adds that the burden of proof under sections 107 to 109 of the Evidence Act lay throughout on the R espondent and never shifted, and that the Adjudicator effectively required him to rebut the abstract, thereby reversing the statutory scheme.
10. He contends that the witness statement of Ms Vivian Kibathi, the legal officer of the respondent’s insurer, being a statement by an interested person made in anticipation of proceedings, was inadmissible under section 35(3) to prove the disputed facts.
11. He further invokes section 4 of the Law Reform Act, section 47(1) of the Traffic Act and the Highway Code, arguing that the respondent’s unindicated swerve into his lane followed by sudden braking amounted to contributory negligence which the trial court failed to consider, citing Lakhamshi v Attorney General [1971] EA 118 and Patrick Muriithi Mumbi & another v Moses Kahindi Karisa [2020] KEHC 2933 (KLR).
12. On quantum, the A ppellant submits that the special damages were not strictly proved. The Integrated Motor Assessors report bore unexplained handwritten alterations of unknown authorship; no certified receipts for repairs from a registered garage were produced; and the proof rested on documents emanating from an interested insurer. Relying on Hahn v Singh [1985] KLR 716 and Mohammed Ali & another v Sagoo Radiators Limited [2013] KECA 163 (KLR), he contends that an assessor’s estimate unsupported by receipts cannot strictly prove special damages, and prays that the appeal be allowed, the judgment set aside and the claim dismissed, or in the alternative that liability be apportioned equally and the award reduced.
C. THE RESPONDENT’S SUBMISSIONS
13. As a threshold matter, the R espondent submits that this is an appeal under section 38(1) of the Small Claims Court Act, which confines appeals from that court to the High Court to matters of law alone. Relying on Fidelity Insurance Company Ltd v Korir [2024] KEHC 3365 (KLR) and Directline Assurance Co. Ltd v Nyawa [2023] KEHC 20201 (KLR), the R espondent contends that this court may not substitute its own appreciation of the facts for that of the trial court unless the findings are so perverse that no reasonable tribunal could have arrived at them, and that only a finding founded on no evidence at all constitutes a point of law.
14. Liability, the R espondent urges, is a factual issue ( Nderitu & another v Chesire [2025] KEHC 7149 (KLR)), and the appellant having dressed factual complaints as points of law, the grounds offend section 38 and ought to be struck out ( Bashir Haji Abdullahi v Adan Mohamed Nooru & 3 others [2014] KECA 621 (KLR)).
15. Without prejudice to that objection, the R espondent submits that the finding on liability was amply supported. His adopted witness statement was that the A ppellant’s vehicle, travelling at speed behind him, violently rammed the rear of his vehicle and propelled it into a third vehicle ahead. Having established the particulars of negligence, the evidential burden shifted to the A ppellant and the A ppellant’s uncorroborated account of a sudden swerve did not discharge it.
16. On quantum, the R espondent submits that the suit was a material-damage recovery claim in which, per Nkuene Dairy Farmers Cooperative Society Ltd & another v Ngacha Ndeiya [2010] eKLR , as applied in Linus Fredrick Msaky v Lazaro Thuram Richoro & another [2016] KEHC 5907 (KLR)), special damages need not be shown to have been actually paid; it suffices to establish the extent of the damage and the cost of restoration through an assessor.
17. The assessment report and the receipts were admitted into evidence without objection, the A ppellant led no contrary expert evidence, and he is estopped from impugning documents he allowed in unchallenged.
18. The R espondent prays that the appeal be dismissed with costs.
D. ISSUES FOR DETERMINATION
19. Having considered the pleadings, the record of appeal and the rival submissions, the issues that fall for determination are two:
(a)Whether, having regard to the appellate jurisdiction conferred by section 38 of the Small Claims Court Act, the learned Adjudicator erred in apportioning 100% liability for the accident to the appellant; and
(b)Whether the Respondent strictly proved the special damages awarded.
E. ANALYSIS AND DETERMINATION
20. It is convenient to begin with the nature of this court’s jurisdiction, for it frames everything that follows. Section 38(1) of the Small Claims Court Act, 2016 provides that an appeal from the Small Claims Court to the High Court lies only on matters of law. This is not the conventional first appeal in which the court is at large to re-hear and re-evaluate the entire evidence in the manner described in Selle & Another v Associated Motor Boat Company Ltd [1968] EA 123.
21. As the court observed in Directline Assurance Co. Ltd v Nyawa [2023] KEHC 20201 (KLR), an appeal from the Small Claims Court is a first and last appeal on points of law, and a finding of fact will be disturbed only where it rests on no evidence. So too in Fidelity Insurance Company Ltd v Korir [2024] KEHC 3365 (KLR) , the court held that the High Court may not substitute its own conclusions on the facts unless the findings are so perverse that no reasonable tribunal would have reached them.
22. It follows that the A ppellant’s invitation, founded on Selle and the line of ordinary civil appeals such as Mwangi v Moseti [2024] KEHC 12001 (KLR) , to re-weigh the whole of the evidence cannot be accepted at face value; the threshold is the higher one of perversity or want of any evidential foundation.
23. That said, the boundary between law and fact is not impermeable. It is settled that a decision is erroneous in law where it is one to which no reasonable court, properly directing itself, could have come ( Twaher Abdulkarim Mohamed v Independent Electoral and Boundaries Commission & 2 others [2014] KEHC 6867 (KLR) , adopting Bracegirdle v Oxney ) . A finding founded on no evidence, or one reached by misapprehending the legal standard of proof, is therefore reviewable even on a points-of-law appeal.
24. The real question on the first issue is accordingly not whether this court would itself have apportioned liability differently, but whether the A ppellant has demonstrated that the finding of 100% liability was reached on no evidence at all, or upon a wrong principle of law.
25. The A ppellant’s legal premise is, in itself, unimpeachable. A police abstract is not conclusive proof of liability; it is evidence only that an accident was reported at a given station, and its contents must be substantiated. Where the Investigating Officer is not called, and the officer who produced the abstract neither investigated nor witnessed the accident, the abstract’s narrative as to blame is hearsay and of no probative value on the question of who caused the accident. That is the effect of Dikir & another v Kimary [2022] KEHC 12733 (KLR) where Majanja J stated that:
“Since the Investigating Officer was not called as testify as to the circumstances of the accident, the reports produced amount to hearsay evidence and cannot be proof of how the accident took place. At the very least, the report is only proof that the accident involving several motor vehicles took place on the material date (see Peter Kanithi Kimunya v Aden Guyo Haro NRB HCCA No. 307 of 2008 [2014] eKLR ). As to which party was to blame for the accident is a question of evidence and the remarks in the OB about blameworthiness is hearsay as the investigating officer was not called a witness. The conclusion therein are matters of opinion which are inadmissible to prove facts.”
26. Also see Kasaam Hauliers Limited & another v Shreeji Enterprises [2025] KEHC 12039 (KLR) where Matheka J held that the abstract standing alone and the parties’ drivers being unavailable, the court finds it impossible to apportion blame and divided liability equally under Lakhamshi v Attorney General [1971] EA 118. Were the present record confined to the abstract, the A ppellant’s argument would be formidable.
27. The difficulty for the A ppellant is that the record is not confined to the abstract. The claim proceeded by documents under section 30 of the Small Claims Court Act, and those documents included the sworn accounts of both parties. The R espondent’s adopted statement was direct evidence of how the accident occurred and not merely that an accident had occurred.
28. Decisively, the A ppellant’s own witness statement does not place his vehicle anywhere other than to the rear: at paragraph 7 he complains that the police “presumed the motor vehicle on the rear was to blame and hence blamed me.” The appellant thus accepted the central spatial fact that he was the following vehicle and quarrelled only with the inference drawn from it. This is a materially different evidential situation from Kasaam Hauliers and Dikir , where there was no account at all of the mechanics of the collision.
29. The legal significance of that admitted fact is considerable. A following driver is required to keep such distance from the vehicle ahead as will enable him to stop safely should that vehicle brake, and to remain vigilant so as to control his vehicle in an emergency . See: Highway Code, Regulation 50 and Fal Azad & another v Peter Mubua Karanja & 2 others [2016] KEHC 6956 (KLR) , where Mulwa J held that a driver who keeps a safe distance and a reasonable speed will be able to brake and avoid running into the vehicle ahead . A rear-end collision by a following vehicle therefore raises a prima facie inference of negligence against that driver, calling for an explanation.
30. This disposes of the A ppellant’s complaint that the trial court reversed the burden of proof. The legal burden under sections 107 to 109 of the Evidence Act remained on the R espondent throughout. But once the R espondent had laid a prima facie case , the rear-end account, the abstract attributing blame to the A ppellant’s vehicle, and the appellant’s own acceptance that he was behind , the evidential burden shifted to the A ppellant to displace that inference .
31. What the A ppellant offered in response was a bare assertion that the R espondent had swerved into his lane without indicating and then braked suddenly. That assertion stood uncorroborated by any sketch, photograph or independent testimony, and the Adjudicator was entitled, on the documents before her, to find it unpersuasive. Read fairly, her observation that the A ppellant “provided no evidence to rebut” the abstract is not a reversal of the legal burden but a recognition that the evidential burden, once shifted, had not been discharged.
32. Nor does the doctrine of contributory negligence assist the A ppellant. Section 4 of the Law Reform Act, and an apportionment under Lakhamshi , presuppose evidence that more than one party was at fault, or that the evidence is so evenly balanced that blame cannot be attributed to either.
33. As the Court of Appeal explained in the passage adopted in Patrick Muriithi Mumbi & another v Moses Kahindi Karisa [2020] KEHC 2933 (KLR), equal apportionment is appropriate “where there is no evidence to establish that any party was negligent.” That is not this case. Here there was evidence pointing to the A ppellant’s negligence, and no credible evidence of negligence on the R espondent’s part, the alleged swerve having been rejected.
34. There being a proper basis to attribute fault, there was no occasion for an equal split. The finding of 100% liability was therefore neither founded on no evidence nor reached on a wrong principle; it was a finding of fact reasonably open to the Adjudicator, and the grounds attacking it amount, in substance, to an invitation to re-try the facts that section 38 does not permit. The first issue is answered in the negative.
35. Turning to the second issue, the A ppellant submitted that special damages must be specifically pleaded and strictly proved ( Hahn v Singh [1985] KLR 716) However, the content of “strict proof” varies with the nature of the claim. This was a material-damage recovery claim, and the governing principle is that stated by the Court of Appeal in Nkuene Dairy Farmers Cooperative Society Ltd & another v Ngacha Ndeiya [2010] eKLR and applied by Aburili J in Linus Fredrick Msaky v Lazaro Thuram Richoro & another [2016] KEHC 5907 (KLR) :
“In our view special damages in a material damage claim need not be shown to have actually been incurred. The claimant is only required to show the extent of the damage and what it would cost to restore the damaged item to as near as possible the condition it was in before the damage complained of. We think the particulars of damage and the value of the repairs were given with some degree of certainty. In Ratcliffe v. Evans [1892]2QB 524 Bowen L.J. said:
“The character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pendantry.”
Motor vehicle parts are sold in shops. An assessor, we think would be in a position to know their cost. The prices may vary from one shop to another but the prices are nonetheless ascertainable even without purchasing the item and fixing it on the damaged vehicle. Motor vehicle parts are common items and any price which the assessor might have given could be counter checked and either accepted or disproved. The appellants having not questioned those prices must be taken to have accepted the report as representing the correct market prices of the various parts which were shown on the Assessor’s report.”
36. Tellingly, the very authority on which the A ppellant relies, Mohammed Ali & another v Sagoo Radiators Limited [2013] KECA 163 (KLR), is against him. There the Court of Appeal, applying Nkuene Dairy , held that an assessor’s itemised estimate of repair costs was sufficient proof of special damages and that the absence of receipts or payment vouchers did not defeat the claim; the appeal was accordingly dismissed. The case is the opposite of the proposition for which it was cited.
37. In the present matter the R espondent produced an assessment report and a re-inspection report itemising the damage to KCN 178Y, and these were admitted into evidence without objection. The A ppellant led no contrary expert evidence, and an assessor’s report of this character can ordinarily be displaced only by other expert evidence.
38. The remaining objections of the handwritten alterations on the assessors’ report, the absence of a garage certificate of registration, and the involvement of the insurer’s officer go to the weight and admissibility of evidence that was received at trial without objection.
39. A party who allows a document to be produced without challenge cannot ordinarily resurrect its admissibility on appeal; as observed in Wellington Nganga Muthiora v Akamba Public Road Services Ltd & another [2010] 2 KLR 39 , it is too late to close the stable after the horse has bolted.
40. There is, moreover, no rule of law requiring a garage to produce a certificate of registration before a repair cost can be proved . T he suggested threshold is not grounded in any authority. These complaints are, once again, factual matters touching the assessment of evidence, and fall outside the narrow compass of a section 38 appeal. The award of special damages discloses no error of law, and the second issue is likewise answered in the negative.
F. CONCLUSION AND DISPOSITION
41. In the result, the A ppellant has not demonstrated that the finding on liability was reached on no evidence or upon a wrong principle, nor that the award of special damages was vitiated by any error of law. Both issues having been answered against the A ppellant, the appeal is without merit.
42. Accordingly, the court makes the following orders:
(a)The appeal is dismissed in its entirety.
(b)The judgment and decree of the Small Claims Court in Case No. SCC/E5607/2023, delivered on 31st July 2024, are upheld.
(c)The Appellant shall bear the costs of the appeal.
Dated and Delivered at Nairobi this 25th day of June 2026.
BENARD WAFULA MURUNGA
JUDGE OF THE HIGH COURT
Delivered on a virtual platform in the presence of:
Maosa for Appellants
Muthiani for Respondents
Kevin Babu - Court Assistant