1. This appeal arises from a road traffic accident that occurred on 17th November 2020, involving the Appellant and motor vehicle registration number KCL 252Y, owned by the 1st Respondent and driven by the 2nd Respondent.
2. The Appellant, who was the plaintiff before the trial court, testified that he was crossing the road at a designated pedestrian crossing when he was knocked down by the said motor vehicle as a result of which he sustained injuries to his head and upper limbs.
3. A police officer testified on behalf of the Appellant and produced a police abstract confirming that an accident occurred on the stated date. However, the officer was not the investigating officer, and no sketch plan of the accident scene was produced.
4. The Appellant was examined by two doctors. Dr. Okere, examined him on 26th January 2021, and noted that he had suffered a deep cut on the occipital region and bruises on the scalp, left shoulder, and right arm. Dr. Muhanda, in a report dated 24th November 2021, similarly documented bruises and a cut on the head.
5. The 2nd Respondent, who was driving the motor vehicle, admitted that the accident occurred but denied that it took place at a pedestrian crossing. He testified that the Appellant suddenly dashed onto the road from behind road barriers, entering the vehicle's lawful path and leaving him with no opportunity to avoid the collision.
6. In its judgment delivered on 27th January 2022, the trial court made the following findings:
1) There was no evidence that the 2nd Respondent was speeding or overlapping, as alleged by the Appellant
2) The police officer who testified was not the investigating officer, and no sketch plan of the accident scene was produced
3) The Appellant admitted that there were road barriers on both sides of the dual carriageway
4) The Appellant did not dispute the 2nd Respondent’s evidence that the pedestrian crossing was located at a distance from the point of impact
5) The Appellant failed to take reasonable care for his own safety by crossing the highway at an undesignated point
6) The 2nd Respondent could not reasonably have avoided the accident, given the Appellant’s sudden and unsafe entry onto the road;
7. Drawing from the foregoing findings, the trial court found the Appellant was found 100% liable for the accident and consequently dismissed the claim with costs to the Respondents.
The Appeal
8. Aggrieved, the Appellant filed this appeal raising the following broad grounds:
1) The police abstract did not apportion blame for the accident
2) The trial court relied on insufficient evidence to dismiss his claim
3) The trial court failed to apply the doctrine of res ipso loquitor
8. The appeal was canvassed by way of written submissions filed by both parties. In support of the appeal, the Appellant submitted that the trial court erred in failing to find the 2nd Respondent liable for the accident contending that the 2nd Respondent failed to maintain a proper lookout for pedestrians. He relied on the case of Polytanks Limited v Everlyne Wanza Musau & 3 others [2019] eKLR, in which the Court emphasized a motorist's duty to exercise reasonable care and caution toward other road users, including pedestrians.
9. In opposition, the Respondents raised a preliminary legal objection to the scope of the appeal. They submitted that the present appeal arises from the Small Claims Court, and that under Section 38(1) of the Small Claims Court Act No. 2 of 2016, an appeal lies only on points of law.
10. In reinforcing their objection, the Respondents cited the decision in Wachira v Mwai (Civil Appeal E022 of 2023) [2024] KEHC 3173 (KLR) (15 March 2024), Matete v Sasala Self Help Group (Civil Appeal E104 of 2023) [2024] KEHC 2583 (KLR) (8 March 2024) (Judgment)) and Achayo v Witness Protection Agency (Civil Appeal E008 of 2024) [2024] KEHC 3877 (KLR) (19 April 2024) (Ruling).
11. On the issue of special damages, the Respondents submitted that the Appellant did not meet the strict legal standard for proof. They cited the Court of Appeal decision in Total (Kenya) Limited v Janevams Limited [2015] eKLR, which in turn relied on Great Lakes Transport Co. (U) Ltd v Kenya Revenue Authority [2009] eKLR 720, where it was stated that special damages must be specifically pleaded and strictly proved, and that invoices, unless endorsed with a "PAID" stamp or accompanied by actual receipts, are inadequate evidence of payment.
12. In conclusion, the Respondents urged the Court to dismiss the appeal in its entirety with costs.
13. This being a first appeal, this Court is under a duty to re-evaluate the evidence, assess and weigh it as a whole, in order to arrive at its own findings and independent conclusion.
14. In doing so, the Court has to take into consideration that it neither saw nor heard the witnesses testify. This duty was well set out by the predecessor of this Court in Okeno v Republic [1972] EA 32 as follows:
"An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v R., [1957] EA 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v R., [1957] EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses," see Peters v Sunday Post, [1958] EA 424.
Issues for Determination
15. Based on the pleadings, record of appeal, submissions by the parties, and applicable legal framework, the following issues arise for determination:
1) Whether the present appeal raises any point of law as required under Section 38(1) of the Small Claims Court Act No. 2 of 2016;
2) Whether the Appellant is entitled to the reliefs sought in the appeal.
1) Whether the present appeal raises any point of law as required under Section 38(1) of the Small Claims Court Act No. 2 of 2016
16. Section 38(1) of the Small Claims Court Act No. 2 of 2016 provides:
“A person aggrieved by a decision of the Court may appeal against that decision to the High Court on matters of law only.”
17. This statutory restriction bars the High Court from entertaining appeals from the Small Claims Court that raise only issues of fact or mixed fact and law.
18. The Appellant’s memorandum of appeal sets out three main grounds:
1) That the police abstract indicated he was not at fault;
2) That the trial court relied on insufficient evidence to dismiss his claim;
3) That the trial court failed to apply the doctrine of res ipsa loquitur.
19. The first two grounds concern the trial court’s factual evaluation of the evidence. The question of what weight to assign to a police abstract, and whether the evidence was sufficient to sustain a finding of 100% liability against the Appellant, are clearly issues of fact. These are beyond the scope of the High Court’s jurisdiction under Section 38(1) of the Act.
20. To succeed on the third ground based on res ipsa loquitur, the Appellant was required to demonstrate that the trial court either misdirected itself on the applicable legal principle or failed to consider it altogether, despite the principle having been properly pleaded and supported by evidence.
21. Notwithstanding the foregoing, the record demonstrates that the trial court made a factual finding that the Appellant suddenly dashed onto the road from behind road barriers, entering the lawful path of the 1st Respondent’s motor vehicle and leaving the 2nd Appellant with no opportunity to avoid the collision. In the circumstances, the doctrine of res ipsa loquitur was inapplicable, and the trial court cannot be faulted for not invoking it.
22. The Respondents, in their submissions, addressed the issue of special damages, contending that the Appellant failed to strictly prove them. However, this issue was not raised by the Appellant in his memorandum of appeal, and in any event, it is an issue of fact, namely, whether the documentary evidence adduced met the evidentiary threshold. It cannot form the basis of a competent appeal under Section 38(1).
23. The Appellant appears to disagree with the factual finding and as was held in Achayo v Witness Protection Agency (Civil Appeal E008 of 2024) [2024] KEHC 3877 (KLR):
“……… A mere disagreement with factual findings does not elevate an appeal into one on a point of law.”
Disposition
24. The Court finds that the appeal does not raise any point of law as required by Section 38(1) of the Small Claims Court Act. The grounds advanced challenge factual findings, and the issue of special damages raised in the Respondents’ submissions was neither pleaded by the Appellant nor does it constitute a point of law.
25. The appeal is therefore not properly before the Court and is hereby dismissed. Costs of the appeal shall be borne by the Appellant and are awarded to the Respondents
Appearances
Court Assistant - Ubah
For Appellant - Ms.Mumbi for Musili Mbiti LLP
For Respondent - Mr. Muuo for Lilan & Koech Associates LLP Advocates
2. The Appellant, who was the plaintiff before the trial court, testified that he was crossing the road at a designated pedestrian crossing when he was knocked down by the said motor vehicle as a result of which he sustained injuries to his head and upper limbs.
3. A police officer testified on behalf of the Appellant and produced a police abstract confirming that an accident occurred on the stated date. However, the officer was not the investigating officer, and no sketch plan of the accident scene was produced.
4. The Appellant was examined by two doctors. Dr. Okere, examined him on 26th January 2021, and noted that he had suffered a deep cut on the occipital region and bruises on the scalp, left shoulder, and right arm. Dr. Muhanda, in a report dated 24th November 2021, similarly documented bruises and a cut on the head.
5. The 2nd Respondent, who was driving the motor vehicle, admitted that the accident occurred but denied that it took place at a pedestrian crossing. He testified that the Appellant suddenly dashed onto the road from behind road barriers, entering the vehicle's lawful path and leaving him with no opportunity to avoid the collision.
6. In its judgment delivered on 27th January 2022, the trial court made the following findings:
1) There was no evidence that the 2nd Respondent was speeding or overlapping, as alleged by the Appellant
2) The police officer who testified was not the investigating officer, and no sketch plan of the accident scene was produced
3) The Appellant admitted that there were road barriers on both sides of the dual carriageway
4) The Appellant did not dispute the 2nd Respondent’s evidence that the pedestrian crossing was located at a distance from the point of impact
5) The Appellant failed to take reasonable care for his own safety by crossing the highway at an undesignated point
6) The 2nd Respondent could not reasonably have avoided the accident, given the Appellant’s sudden and unsafe entry onto the road;
7. Drawing from the foregoing findings, the trial court found the Appellant was found 100% liable for the accident and consequently dismissed the claim with costs to the Respondents.
The Appeal
8. Aggrieved, the Appellant filed this appeal raising the following broad grounds:
1) The police abstract did not apportion blame for the accident
2) The trial court relied on insufficient evidence to dismiss his claim
3) The trial court failed to apply the doctrine of res ipso loquitor
8. The appeal was canvassed by way of written submissions filed by both parties. In support of the appeal, the Appellant submitted that the trial court erred in failing to find the 2nd Respondent liable for the accident contending that the 2nd Respondent failed to maintain a proper lookout for pedestrians. He relied on the case of Polytanks Limited v Everlyne Wanza Musau & 3 others [2019] eKLR, in which the Court emphasized a motorist's duty to exercise reasonable care and caution toward other road users, including pedestrians.
9. In opposition, the Respondents raised a preliminary legal objection to the scope of the appeal. They submitted that the present appeal arises from the Small Claims Court, and that under Section 38(1) of the Small Claims Court Act No. 2 of 2016, an appeal lies only on points of law.
10. In reinforcing their objection, the Respondents cited the decision in Wachira v Mwai (Civil Appeal E022 of 2023) [2024] KEHC 3173 (KLR) (15 March 2024), Matete v Sasala Self Help Group (Civil Appeal E104 of 2023) [2024] KEHC 2583 (KLR) (8 March 2024) (Judgment)) and Achayo v Witness Protection Agency (Civil Appeal E008 of 2024) [2024] KEHC 3877 (KLR) (19 April 2024) (Ruling).
11. On the issue of special damages, the Respondents submitted that the Appellant did not meet the strict legal standard for proof. They cited the Court of Appeal decision in Total (Kenya) Limited v Janevams Limited [2015] eKLR, which in turn relied on Great Lakes Transport Co. (U) Ltd v Kenya Revenue Authority [2009] eKLR 720, where it was stated that special damages must be specifically pleaded and strictly proved, and that invoices, unless endorsed with a "PAID" stamp or accompanied by actual receipts, are inadequate evidence of payment.
12. In conclusion, the Respondents urged the Court to dismiss the appeal in its entirety with costs.
13. This being a first appeal, this Court is under a duty to re-evaluate the evidence, assess and weigh it as a whole, in order to arrive at its own findings and independent conclusion.
14. In doing so, the Court has to take into consideration that it neither saw nor heard the witnesses testify. This duty was well set out by the predecessor of this Court in Okeno v Republic [1972] EA 32 as follows:
"An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v R., [1957] EA 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v R., [1957] EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses," see Peters v Sunday Post, [1958] EA 424.
Issues for Determination
15. Based on the pleadings, record of appeal, submissions by the parties, and applicable legal framework, the following issues arise for determination:
1) Whether the present appeal raises any point of law as required under Section 38(1) of the Small Claims Court Act No. 2 of 2016;
2) Whether the Appellant is entitled to the reliefs sought in the appeal.
1) Whether the present appeal raises any point of law as required under Section 38(1) of the Small Claims Court Act No. 2 of 2016
16. Section 38(1) of the Small Claims Court Act No. 2 of 2016 provides:
“A person aggrieved by a decision of the Court may appeal against that decision to the High Court on matters of law only.”
17. This statutory restriction bars the High Court from entertaining appeals from the Small Claims Court that raise only issues of fact or mixed fact and law.
18. The Appellant’s memorandum of appeal sets out three main grounds:
1) That the police abstract indicated he was not at fault;
2) That the trial court relied on insufficient evidence to dismiss his claim;
3) That the trial court failed to apply the doctrine of res ipsa loquitur.
19. The first two grounds concern the trial court’s factual evaluation of the evidence. The question of what weight to assign to a police abstract, and whether the evidence was sufficient to sustain a finding of 100% liability against the Appellant, are clearly issues of fact. These are beyond the scope of the High Court’s jurisdiction under Section 38(1) of the Act.
20. To succeed on the third ground based on res ipsa loquitur, the Appellant was required to demonstrate that the trial court either misdirected itself on the applicable legal principle or failed to consider it altogether, despite the principle having been properly pleaded and supported by evidence.
21. Notwithstanding the foregoing, the record demonstrates that the trial court made a factual finding that the Appellant suddenly dashed onto the road from behind road barriers, entering the lawful path of the 1st Respondent’s motor vehicle and leaving the 2nd Appellant with no opportunity to avoid the collision. In the circumstances, the doctrine of res ipsa loquitur was inapplicable, and the trial court cannot be faulted for not invoking it.
22. The Respondents, in their submissions, addressed the issue of special damages, contending that the Appellant failed to strictly prove them. However, this issue was not raised by the Appellant in his memorandum of appeal, and in any event, it is an issue of fact, namely, whether the documentary evidence adduced met the evidentiary threshold. It cannot form the basis of a competent appeal under Section 38(1).
23. The Appellant appears to disagree with the factual finding and as was held in Achayo v Witness Protection Agency (Civil Appeal E008 of 2024) [2024] KEHC 3877 (KLR):
“……… A mere disagreement with factual findings does not elevate an appeal into one on a point of law.”
Disposition
24. The Court finds that the appeal does not raise any point of law as required by Section 38(1) of the Small Claims Court Act. The grounds advanced challenge factual findings, and the issue of special damages raised in the Respondents’ submissions was neither pleaded by the Appellant nor does it constitute a point of law.
25. The appeal is therefore not properly before the Court and is hereby dismissed. Costs of the appeal shall be borne by the Appellant and are awarded to the Respondents
Appearances
Court Assistant - Ubah
For Appellant - Ms.Mumbi for Musili Mbiti LLP
For Respondent - Mr. Muuo for Lilan & Koech Associates LLP Advocates