The above-named Appellant Ramco Constructions Ltd, being dissatisfied with the above-mentioned decision in its entirety delivered by Hon. M. THIBAARU - Adjudicator Resident Magistrate at Machakos Small Claims Court Case No: SCCC E198/2024 delivered on 5.08.2024 appeals against the entire judgment on the following grounds:
1. That the learned trial Adjudicator erred in Jaw and in fact when he dismissed the Appellant's case in its entirety without considering the merits of the claim.
2. That the Honourable Learned Magistrate erred and misdirected herself as to the law applicable in the dismissal of suit and/or that her decision to dismiss the suit with costs, reveal a misapprehension of the law.
3. That the learned trial Adjudicator erred in law and fact by failing to appreciate the evidence tendered regarding the case as highlighted hereunder: -
a) The payment Vouchers evidencing the payment of Kshs. 138,162/= as the total repair costs to motor vehicle KBR 277B.
b) The police abstract blaming motor vehicle KCH 408E for the accident.
4. That the learned trial Magistrate erred in law and fact by dismissing claimant’s case with costs to the Respondent and failing to appreciate the fact that the Respondent did not bring forth any witnesses to support its claim.
5. That the learned trial magistrate erred in law and fact by failing to consider the evidence adduced by the Police officer and the claim officer during the hearing of the suit.
6. That the learned trial magistrate erred in law and fact in imposing a greater burden of proof than is required in civil cases.
7. That the learned Magistrate failed to take into account the principles of justice enshrined in Article 159(2) in the Constitution of Kenya and specifically Article 159(2)(d) of the Constitution which provides that justice shall be administered without undue regard to procedural technicalities.
8. That the Judgment delivered was contrary to the principles known in law and failed to consider the pleadings and evidence on record.
9. That the learned trial magistrate erred in failing to consider the Appellant's submissions and thereby arrived at findings that have absolutely no basis in law and fact.
REASONS WHEREOF the Appellant prays that:
a) The Appeal be allowed and the judgement and decree in Machakos SCCC E198/2024 be set aside in its entirety and judgement be entered as prayed in the Statement of Claim.
b) The Respondent be condemned to pay costs to the suit in the lower court and the costs of the Appeal.
Brief facts
The Claimant sued the Respondent vide a Statement of Claim dated 16th February, 2024.
The brief facts of the case are that on 14/9/2021, at around 6.40pm the Claimant's motor vehicle registration number KBR 277B was lawfully joining Mombasa road at Syokimau Junction when motor vehicle registration no. KCH 408E was so negligently, dangerously and/or carelessly controlled by the respondent or/and his driver/agent that it collided with the claimant's motor vehicle as a result of which the claimant’s motor vehicle was damaged.
The claimant blames the respondent for the negligence which led to the accident. He therefore claims for special damages of Kshs. 138,162/=, costs and interest.
The respondent denied the occurrence of the accident in his response to the claim dated 3rd April, 2024.
On 5th August, 2024 the court delivered the judgement and dismissed the claim with costs to the respondent.
Claimant evidence
Claimant Witness One- No 60244 sergeant Mwikali from Athi River Police Station - Traffic. He has an abstract dated 15/09/2021 of an accident which occurred on 14/09/2021 at 1840Hrs along Nairobi - Mombasa road showing motor vehicle KBR 277B and motor vehicle KCH 408E/ZD8757. The scene was visited by Police Constable Kiragu and after investigations Motor vehicle KCH 408E/ZD8757 was blamed for the accident. Matter recorded Vide OB No 08/15/09/2021. I wish to produce the abstract as (Exhibit - 6).
On cross-examination, she stated that the investigation officer was Police Constable Kiragu. The abstract shows as Police Constable Kirira. His full names is Police Constable Kiragu Kirira. The accident scene was visited on the same date, 14/09/2021 but recorded on the 15 / 09/2021. He was present but did not go to the scene. He doesn’t know how the accident happened.
The motor vehicle blamed was a trailer.
Respondent
He did not call any witness.
Appellant submissions
Whether the Claimant/ Appellant proved their case on a balance of probabilities
For a Civil suit the parties rely on the ruler of probability whereby the party that proves to the Court that his case ought to have been probable than the other party then walks away with the victory.
In the case William Kabogo Gitau v George Thuo & 2 Others (2010] 4124 KLR where the court ruled “In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”
The Claimant’s/Appellant's proved that an accident occurred and the Respondent Motor vehicle KCH 408E was blamed for the accident, it produced an Abstract blaming the Respondents vehicle and a Police officer from the Police station where the accident was reported testified supporting the facts of the occurrence of the Accident and KCH 408E being blamed
The appellant submits that the Police Officer may not have been the Investigating Officer but he clearly stated that he was producing an abstract drawn by his colleague PC Kiragu Kirira who had visited the scene and was the Investigating officer. It is therefore clear that there was indeed an Investigation conducted and upon its conclusion the Respondents vehicle was blamed for the accident.
The Respondents did not produce any conflicting abstract controverting the evidence produced by the claimant nor did they call police officer to testify otherwise. The fact that the accident happened and the Respondents vehicle was blamed for the accident remains a fact which remains undisputed.
The Claimant’s/Appellant’s explained the circumstances of the accident in the Witness statement and sketch drawn as part of the claim form which show that the claimants vehicle was hit by motor vehicle KCH 408E on the right wing, in all its pleadings, the claimant blamed only Motor vehicle KCH 408E and did not quote the trailer ZD 8757 hence as per the Claimants documents, the blamed vehicle was KCH 408E as the claimant proved.
The Respondents made allegations that the Claimant’s vehicle was negligent leading to the accident and introduced particulars in which it was negligent. The Respondent however filed noting to support these allegations nor called any witness to explain how the claimant's vehicle was negligent. Section 109 of the Evidence Act “The Burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
Respondent submissions
The Appellant alleges that the Trial Court failed to consider the claim on its merits, disregarded the Appellant's documentary evidence (including payment vouchers and a police abstract), and misapplied the principle of burden of proof. The Respondent respectfully submits that these grounds are without merit.
The police abstract produced by the Appellant was of limited probative value. While it indicated that an accident occurred and attributed liability to the Respondent's vehicle, it did not amount to conclusive proof of negligence.
The abstract, dated 15th September 2021, was produced by Sergeant Phylis Mwikali. Upon cross-examination, she confirmed that she did not witness the accident, conduct investigations, or visit the scene. She was merely asked to produce the abstract. In the absence of any sketch maps, OB extract, or detailed investigation report, the abstract remained a mere administrative record and could not, on its own, establish liability against the Respondent.
In Kennedy Nyangoya v Bash Hauliers 2016 eKLR the Court stated that:
"..Even if the police abstract indicated that DW1 was to blame for the accident, the said abstract was not conclusive proof of liability in the absence of evidence being called to support it.”
The respondent submits that the payment vouchers relied upon by the Appellant merely indicate that repairs were out on the subject motor vehicle. However, such vouchers, by themselves, do not establish liability on the part of the Respondent.
The appellant submits that the Trial Court did not discharge either burden. The production of payment vouchers and a police abstract, without calling the investigating officer, the vehicle driver (who was involved in the alleged accident, if at all, or any eyewitnesses, fell short of the evidential threshold. As such, the burden never shifted to the Respondent, and the Trial Court was right in finding that the Appellant had failed to prove its case.
Lastly, the Respondent submits that the Trial Court's decision was based not on any procedural technicality, but on the substantive failure by the Appellant to discharge the burden of proof. Article 159(2)(d) is not a license to overlook evidentiary shortcomings or to excuse a party from complying with the rules of evidence and procedure.
In Jaldesa Tuke Dabelo v Independent Electoral & Boundaries Commission & anor 2015 eKLR the Court of Appeal had this to say of the matter: -
“Article 159 was neither aimed at conferring jurisdiction where none exists nor intended derogate from express statutory procedures...”
Issue
1. Whether the Appellant proved its claim against the Respondent on a balance of probabilities.
Analysis
This being a first appeal, the Court is under a duty to re-evaluate the evidence on record, assess it independently, and draw its own conclusions, while giving due allowance for the fact that it neither saw nor heard the witnesses (see Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123).
The main issue is whether the Appellant proved its claim against the Respondent on a balance of probabilities.
Sections 107, 108 and 109 of the Evidence Act place the burden of proof on the person who alleges. In civil claims founded on negligence, the claimant must prove, on a balance of probabilities, both the occurrence of the accident and that it was caused by the negligence of the defendant or its agent.
The standard was restated in William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR: a party succeeds if it persuades the court that the allegations pleaded are more likely than not to be true (the 51% threshold).
The production of payment vouchers establishing the cost of repairs to KBR 277B proves special damages (quantum) once liability is established. It does not, by itself, prove how the damage occurred or who was negligent.
Evidentiary value of the police abstract
The Appellant placed heavy reliance on the police abstract, which attributed blame to motor vehicle KCH 408E/ZD 8757, and on the testimony of the police officer who produced it.
Courts have consistently held that a police abstract is not conclusive proof of liability or negligence. Its primary function is to confirm that an accident was reported to the police and to record the particulars of the vehicles and persons involved. It does not, standing alone, establish causation or allocate blame.
In Kennedy Nyangoya v Bash Hauliers [2016] eKLR, the High Court held that even where a police abstract indicated that a particular party was to blame, the abstract was not conclusive proof of liability in the absence of evidence called to support it. The Court emphasised the need for supporting evidence such as testimony from the investigating officer or eyewitnesses, and noted the failure to call the driver or produce sketch plans as fatal to the claim.
In the present case, the officer who produced the abstract expressly stated that she was not the investigating officer, did not visit the scene, and did not know how the accident happened. No sketch plan, detailed investigation report, or OB extract explaining the circumstances was produced. No driver of either vehicle or independent eyewitness was called.
Consequently, the abstract remained an administrative record of limited probative value on the critical issue of negligence. The mere fact that the Respondent called no evidence does not relieve the Appellant of the primary burden of proving its case.
The Appellant’s pleadings and the claim form described the circumstances of the collision. However, pleadings are not evidence. Without oral or documentary evidence from a person with personal knowledge of how the accident occurred, or from the investigating officer who formed the opinion recorded in the abstract, the claim remained unproven on the issue of liability.
The payment vouchers and repair costs
The Appellant also relied upon payment vouchers said to evidence payment of Kshs. 138,162/= as repair costs for motor vehicle KBR 277B.
The vouchers may establish that certain payments were made in respect of repairs. However, proof of expenditure does not, in itself, establish who caused the accident or whether the Respondent was legally responsible for the damage. The Appellant was required to establish both liability and the consequential loss.
On the evidence before the trial court, the link between the alleged negligence of the Respondent and the repair expenditure was not sufficiently established.
The Appellant cited Article 159(2)(d), which requires that justice be administered without undue regard to procedural technicalities. The trial court’s decision rested on the Appellant’s failure to prove negligence, not on a mere procedural technicality.
In conclusion, on a re-evaluation of the entire record, I find that the Appellant failed to prove, on a balance of probabilities, that the Respondent or its driver/agent was negligent and thereby caused the damage to motor vehicle KBR 277B. The trial Adjudicator was correct in dismissing the claim.
My finding is that the appeal lacks merit and is hereby dismissed.
READ IN OPEN COURT THIS 8TH SEPTEMBER 2026 IN THE PRESENCE OF:
NO PARTY PRESENTSS
BEFORE HON JOYCE GANDANI, JUDGE HIGH COURT
COURT ASSISTANT, DIANA
1. That the learned trial Adjudicator erred in Jaw and in fact when he dismissed the Appellant's case in its entirety without considering the merits of the claim.
2. That the Honourable Learned Magistrate erred and misdirected herself as to the law applicable in the dismissal of suit and/or that her decision to dismiss the suit with costs, reveal a misapprehension of the law.
3. That the learned trial Adjudicator erred in law and fact by failing to appreciate the evidence tendered regarding the case as highlighted hereunder: -
a) The payment Vouchers evidencing the payment of Kshs. 138,162/= as the total repair costs to motor vehicle KBR 277B.
b) The police abstract blaming motor vehicle KCH 408E for the accident.
4. That the learned trial Magistrate erred in law and fact by dismissing claimant’s case with costs to the Respondent and failing to appreciate the fact that the Respondent did not bring forth any witnesses to support its claim.
5. That the learned trial magistrate erred in law and fact by failing to consider the evidence adduced by the Police officer and the claim officer during the hearing of the suit.
6. That the learned trial magistrate erred in law and fact in imposing a greater burden of proof than is required in civil cases.
7. That the learned Magistrate failed to take into account the principles of justice enshrined in Article 159(2) in the Constitution of Kenya and specifically Article 159(2)(d) of the Constitution which provides that justice shall be administered without undue regard to procedural technicalities.
8. That the Judgment delivered was contrary to the principles known in law and failed to consider the pleadings and evidence on record.
9. That the learned trial magistrate erred in failing to consider the Appellant's submissions and thereby arrived at findings that have absolutely no basis in law and fact.
REASONS WHEREOF the Appellant prays that:
a) The Appeal be allowed and the judgement and decree in Machakos SCCC E198/2024 be set aside in its entirety and judgement be entered as prayed in the Statement of Claim.
b) The Respondent be condemned to pay costs to the suit in the lower court and the costs of the Appeal.
Brief facts
The Claimant sued the Respondent vide a Statement of Claim dated 16th February, 2024.
The brief facts of the case are that on 14/9/2021, at around 6.40pm the Claimant's motor vehicle registration number KBR 277B was lawfully joining Mombasa road at Syokimau Junction when motor vehicle registration no. KCH 408E was so negligently, dangerously and/or carelessly controlled by the respondent or/and his driver/agent that it collided with the claimant's motor vehicle as a result of which the claimant’s motor vehicle was damaged.
The claimant blames the respondent for the negligence which led to the accident. He therefore claims for special damages of Kshs. 138,162/=, costs and interest.
The respondent denied the occurrence of the accident in his response to the claim dated 3rd April, 2024.
On 5th August, 2024 the court delivered the judgement and dismissed the claim with costs to the respondent.
Claimant evidence
Claimant Witness One- No 60244 sergeant Mwikali from Athi River Police Station - Traffic. He has an abstract dated 15/09/2021 of an accident which occurred on 14/09/2021 at 1840Hrs along Nairobi - Mombasa road showing motor vehicle KBR 277B and motor vehicle KCH 408E/ZD8757. The scene was visited by Police Constable Kiragu and after investigations Motor vehicle KCH 408E/ZD8757 was blamed for the accident. Matter recorded Vide OB No 08/15/09/2021. I wish to produce the abstract as (Exhibit - 6).
On cross-examination, she stated that the investigation officer was Police Constable Kiragu. The abstract shows as Police Constable Kirira. His full names is Police Constable Kiragu Kirira. The accident scene was visited on the same date, 14/09/2021 but recorded on the 15 / 09/2021. He was present but did not go to the scene. He doesn’t know how the accident happened.
The motor vehicle blamed was a trailer.
Respondent
He did not call any witness.
Appellant submissions
Whether the Claimant/ Appellant proved their case on a balance of probabilities
For a Civil suit the parties rely on the ruler of probability whereby the party that proves to the Court that his case ought to have been probable than the other party then walks away with the victory.
In the case William Kabogo Gitau v George Thuo & 2 Others (2010] 4124 KLR where the court ruled “In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”
The Claimant’s/Appellant's proved that an accident occurred and the Respondent Motor vehicle KCH 408E was blamed for the accident, it produced an Abstract blaming the Respondents vehicle and a Police officer from the Police station where the accident was reported testified supporting the facts of the occurrence of the Accident and KCH 408E being blamed
The appellant submits that the Police Officer may not have been the Investigating Officer but he clearly stated that he was producing an abstract drawn by his colleague PC Kiragu Kirira who had visited the scene and was the Investigating officer. It is therefore clear that there was indeed an Investigation conducted and upon its conclusion the Respondents vehicle was blamed for the accident.
The Respondents did not produce any conflicting abstract controverting the evidence produced by the claimant nor did they call police officer to testify otherwise. The fact that the accident happened and the Respondents vehicle was blamed for the accident remains a fact which remains undisputed.
The Claimant’s/Appellant’s explained the circumstances of the accident in the Witness statement and sketch drawn as part of the claim form which show that the claimants vehicle was hit by motor vehicle KCH 408E on the right wing, in all its pleadings, the claimant blamed only Motor vehicle KCH 408E and did not quote the trailer ZD 8757 hence as per the Claimants documents, the blamed vehicle was KCH 408E as the claimant proved.
The Respondents made allegations that the Claimant’s vehicle was negligent leading to the accident and introduced particulars in which it was negligent. The Respondent however filed noting to support these allegations nor called any witness to explain how the claimant's vehicle was negligent. Section 109 of the Evidence Act “The Burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
Respondent submissions
The Appellant alleges that the Trial Court failed to consider the claim on its merits, disregarded the Appellant's documentary evidence (including payment vouchers and a police abstract), and misapplied the principle of burden of proof. The Respondent respectfully submits that these grounds are without merit.
The police abstract produced by the Appellant was of limited probative value. While it indicated that an accident occurred and attributed liability to the Respondent's vehicle, it did not amount to conclusive proof of negligence.
The abstract, dated 15th September 2021, was produced by Sergeant Phylis Mwikali. Upon cross-examination, she confirmed that she did not witness the accident, conduct investigations, or visit the scene. She was merely asked to produce the abstract. In the absence of any sketch maps, OB extract, or detailed investigation report, the abstract remained a mere administrative record and could not, on its own, establish liability against the Respondent.
In Kennedy Nyangoya v Bash Hauliers 2016 eKLR the Court stated that:
"..Even if the police abstract indicated that DW1 was to blame for the accident, the said abstract was not conclusive proof of liability in the absence of evidence being called to support it.”
The respondent submits that the payment vouchers relied upon by the Appellant merely indicate that repairs were out on the subject motor vehicle. However, such vouchers, by themselves, do not establish liability on the part of the Respondent.
The appellant submits that the Trial Court did not discharge either burden. The production of payment vouchers and a police abstract, without calling the investigating officer, the vehicle driver (who was involved in the alleged accident, if at all, or any eyewitnesses, fell short of the evidential threshold. As such, the burden never shifted to the Respondent, and the Trial Court was right in finding that the Appellant had failed to prove its case.
Lastly, the Respondent submits that the Trial Court's decision was based not on any procedural technicality, but on the substantive failure by the Appellant to discharge the burden of proof. Article 159(2)(d) is not a license to overlook evidentiary shortcomings or to excuse a party from complying with the rules of evidence and procedure.
In Jaldesa Tuke Dabelo v Independent Electoral & Boundaries Commission & anor 2015 eKLR the Court of Appeal had this to say of the matter: -
“Article 159 was neither aimed at conferring jurisdiction where none exists nor intended derogate from express statutory procedures...”
Issue
1. Whether the Appellant proved its claim against the Respondent on a balance of probabilities.
Analysis
This being a first appeal, the Court is under a duty to re-evaluate the evidence on record, assess it independently, and draw its own conclusions, while giving due allowance for the fact that it neither saw nor heard the witnesses (see Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123).
The main issue is whether the Appellant proved its claim against the Respondent on a balance of probabilities.
Sections 107, 108 and 109 of the Evidence Act place the burden of proof on the person who alleges. In civil claims founded on negligence, the claimant must prove, on a balance of probabilities, both the occurrence of the accident and that it was caused by the negligence of the defendant or its agent.
The standard was restated in William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR: a party succeeds if it persuades the court that the allegations pleaded are more likely than not to be true (the 51% threshold).
The production of payment vouchers establishing the cost of repairs to KBR 277B proves special damages (quantum) once liability is established. It does not, by itself, prove how the damage occurred or who was negligent.
Evidentiary value of the police abstract
The Appellant placed heavy reliance on the police abstract, which attributed blame to motor vehicle KCH 408E/ZD 8757, and on the testimony of the police officer who produced it.
Courts have consistently held that a police abstract is not conclusive proof of liability or negligence. Its primary function is to confirm that an accident was reported to the police and to record the particulars of the vehicles and persons involved. It does not, standing alone, establish causation or allocate blame.
In Kennedy Nyangoya v Bash Hauliers [2016] eKLR, the High Court held that even where a police abstract indicated that a particular party was to blame, the abstract was not conclusive proof of liability in the absence of evidence called to support it. The Court emphasised the need for supporting evidence such as testimony from the investigating officer or eyewitnesses, and noted the failure to call the driver or produce sketch plans as fatal to the claim.
In the present case, the officer who produced the abstract expressly stated that she was not the investigating officer, did not visit the scene, and did not know how the accident happened. No sketch plan, detailed investigation report, or OB extract explaining the circumstances was produced. No driver of either vehicle or independent eyewitness was called.
Consequently, the abstract remained an administrative record of limited probative value on the critical issue of negligence. The mere fact that the Respondent called no evidence does not relieve the Appellant of the primary burden of proving its case.
The Appellant’s pleadings and the claim form described the circumstances of the collision. However, pleadings are not evidence. Without oral or documentary evidence from a person with personal knowledge of how the accident occurred, or from the investigating officer who formed the opinion recorded in the abstract, the claim remained unproven on the issue of liability.
The payment vouchers and repair costs
The Appellant also relied upon payment vouchers said to evidence payment of Kshs. 138,162/= as repair costs for motor vehicle KBR 277B.
The vouchers may establish that certain payments were made in respect of repairs. However, proof of expenditure does not, in itself, establish who caused the accident or whether the Respondent was legally responsible for the damage. The Appellant was required to establish both liability and the consequential loss.
On the evidence before the trial court, the link between the alleged negligence of the Respondent and the repair expenditure was not sufficiently established.
The Appellant cited Article 159(2)(d), which requires that justice be administered without undue regard to procedural technicalities. The trial court’s decision rested on the Appellant’s failure to prove negligence, not on a mere procedural technicality.
In conclusion, on a re-evaluation of the entire record, I find that the Appellant failed to prove, on a balance of probabilities, that the Respondent or its driver/agent was negligent and thereby caused the damage to motor vehicle KBR 277B. The trial Adjudicator was correct in dismissing the claim.
My finding is that the appeal lacks merit and is hereby dismissed.
READ IN OPEN COURT THIS 8TH SEPTEMBER 2026 IN THE PRESENCE OF:
NO PARTY PRESENTSS
BEFORE HON JOYCE GANDANI, JUDGE HIGH COURT
COURT ASSISTANT, DIANA