(Being an Appeal from the Judgment of Hon. D.S. Aswani (Adjudicator) delivered on 12 th September 2024 in Milimani SCCCOMM No. E2281 of 2024)
Introduction
1. This appeal arises from the judgment of the Small Claims Court at Milimani ( D.S. Aswani, Adjudicator ) delivered on 12 th September 2024 in Milimani SCCCOMM No. E2281 of 2024.
2. On 24 th March 2024, at around 5.00 p.m., an accident occurred at Gigiri along Muthaiga Road involving the appellant’s motor vehicle KDK 144T and the respondent’s motor vehicle KDK 202R.
Factual History
3. The appellant lodged a statement of claim dated 5 th May 2024 blaming the respondent for the accident for negligently driving his car, overtaking her driver and causing the accident. She held him liable for the damage to her car, for which she sought compensation to the tune of KShs. 963,620/-.
4. The respondent denied the claim in his response dated 17 th May 2024, instead blaming the appellant for the accident and material damages to his motor vehicle. In this regard, the respondent filed a counterclaim of even date claiming KShs. 289,652/- for the damage to his motor vehicle.
5. In a Judgment delivered on 12 th September 2024, the trial court evaluated the evidence of the parties and found that the respondent’s version of events was more likely on account of the images of the scene, positioning of the vehicles after the accident and the impact on both vehicles. In her view, the appellant’s driver swerved to avoid hitting the respondent’s vehicle but acted a little too late, hence the collision. What is more, the trial court further observed that, as a general rule, a vehicle that collides with another from the rear is presumed to be at fault. Further, it was the trial court’s reasoning that vehicles should keep a distance of 1.8 metres (6 feet) between them to allow for emergency reaction.
6. Accordingly, the trial court found the appellant wholly liable, upheld the respondent’s counterclaim and dismissed the appellant’s claim.
The Appeal
7. Dissatisfied with the trial court’s decision, the appellant filed a Memorandum of Appeal dated 14 th September 2024 raising the following grounds of appeal, that the Learned Trial Magistrate erred in law and fact:
i. By ignoring the admission by the respondent in his witness statement, that his motor vehicle was in motion at the time of the accident and arriving at a conclusion that is not supported by the evidence on record.
ii. By arriving at a determination on the contents of the police abstract that was not tendered by the maker, and which act was objected and submitted upon by the appellant.
iii. By arriving at a determination based on normative presumption of 1.8 metres safety distance; which contradicts the respondent’s witness statement and is not supported by the evidence on record.
iv. By disregarding the evidence tendered and supported by photographic images taken on the scene of the accident and arriving at a conclusion that is not supported by the evidence on record.
v. By ignoring the evidence in the appellant’s pleadings and submissions which was not controverted, by the respondent.
8. Accordingly, the appellant prayed for the appeal to be allowed and the Judgment of the trial court be set aside.
The Appellant’s Submissions
9. In support of their appeal, the appellant filed their submissions dated 29 th January 2026 contending that the respondent admitted that his vehicle was in motion at the time of the accident, which evidence was improperly disregarded.
10. She also urged that the trial court failed to evaluate or attach any meaningful significance to the photographic evidence of the scene of the accident.
The Respondent’s Submissions
11. In his submissions dated 13 th February 2026 opposing the appeal, the respondent contended the trial court considered his witness statement, whose contents were corroborated by the investigation officer’s testimony and the photographic evidence. Upon considering the foregoing, argued the respondent, the trial Magistrate concluded that the appellant was at fault. As for the police abstract, he contended that it was produced by the author and therefore raised no reasonable ground for appeal.
12. Accordingly, he posited that the appellant failed to discharge the burden of proof and the appeal was unmeritorious. He thus prayed that the appeal be dismissed.
ANALYSIS AND DETERMINATION
13. I have considered the proceedings and judgment of the trial court, the appeal and rival submissions made before me. Being an appeal from the Small Claims Court, this Court’s jurisdiction is restricted to matters of law as set out in Section 38 of the Small Claims Court Act.
14. I will first consider whether the grounds of appeal meet this jurisdictional rubric. Looking at grounds (i), (iv) and (v) of the Memorandum of Appeal, though framed as failures to consider or ignoring evidence, they in substance challenge the trial court’s evaluation and weight of the evidence. However, the learned trial Magistrate expressly considered and rejected the said evidence. In the circumstances, the appellant has not demonstrated that there was a misdirection in law, failure to consider material evidence, or reliance on inadmissible matters. While the complaint on photographic evidence is ostensibly capable of raising a question of law as to whether the findings were supported by the record, the proceedings demonstrate that the evidence was considered alongside the totality of the material and the conclusion reached was one open to the court; no absence or misapprehension of evidence, or error of legal principle, was established. In the result, the foregoing grounds amount to a disagreement with the weight of evidence and the inferences drawn, inviting a re-evaluation of the facts, which lies outside the remit of this Court, and accordingly raise no question of law and fall outside this Court’s jurisdiction.
15. As for ground (ii) of the memorandum of appeal, I have considered the record of appeal. The proceedings are not attached. The Judgment, on its part, merely states that RW2 relied on the OB extract, but it makes no mention of the identity of the said police officer. Neither do the respondent’s pleadings before the trial court capture this. The appellant bears the burden of placing before this Court a complete record to enable determination of the issues raised. In the absence of the proceedings, and with the Judgment being silent on the identity and testimony of RW2, this Court is unable to verify the complaint. The ground therefore fails for want of a proper evidentiary basis.
16. Unlike the foregoing grounds, ground (iii) raises a genuine question of law, the correct legal standard governing following distance, and I therefore proceed to consider it on the merits. While the trial court's articulation of a fixed presumptive distance was not strictly precise, the applicable legal standard is whether the following driver maintained a safe distance sufficient to stop, slow down or take evasive action. See Section 49 of the Traffic Act. This, however, does not avail the appellant, since she bore the burden of establishing that a safe distance was in fact maintained and failed to do so. The trial court's ultimate conclusion, that a safe distance was not maintained, is accordingly sustainable.
17. Even assuming the trial court fell into error, it is common ground that the appellant’s motor vehicle collided with the rear of the respondent’s motor vehicle. It is settled that a driver who collides with another vehicle from the rear is generally presumed to be at fault, absent evidence to the contrary. (See Orioki vs Kevian Kenya Limited (Civil Appeal 341 of 2019) [2025] KECA 780 (KLR) ; Njuguna vs Chogo [1985] KLR 452; Lamek vs Mutungu (Civil Appeal E088 of 2023) [2026] KEHC 2836 (KLR) .
18. The appellant did not proffer any evidence that would have displaced this maxim or brought her within the ambit of the exceptions thereto.
19. In the circumstances, I find no basis to disturb the trial court’s Judgment and the same is upheld. The appeal is dismissed with costs to the respondent.
It is so ordered.
Dated, Delivered and Signed at Nairobi this 16 th day of July 2026.
Introduction
1. This appeal arises from the judgment of the Small Claims Court at Milimani ( D.S. Aswani, Adjudicator ) delivered on 12 th September 2024 in Milimani SCCCOMM No. E2281 of 2024.
2. On 24 th March 2024, at around 5.00 p.m., an accident occurred at Gigiri along Muthaiga Road involving the appellant’s motor vehicle KDK 144T and the respondent’s motor vehicle KDK 202R.
Factual History
3. The appellant lodged a statement of claim dated 5 th May 2024 blaming the respondent for the accident for negligently driving his car, overtaking her driver and causing the accident. She held him liable for the damage to her car, for which she sought compensation to the tune of KShs. 963,620/-.
4. The respondent denied the claim in his response dated 17 th May 2024, instead blaming the appellant for the accident and material damages to his motor vehicle. In this regard, the respondent filed a counterclaim of even date claiming KShs. 289,652/- for the damage to his motor vehicle.
5. In a Judgment delivered on 12 th September 2024, the trial court evaluated the evidence of the parties and found that the respondent’s version of events was more likely on account of the images of the scene, positioning of the vehicles after the accident and the impact on both vehicles. In her view, the appellant’s driver swerved to avoid hitting the respondent’s vehicle but acted a little too late, hence the collision. What is more, the trial court further observed that, as a general rule, a vehicle that collides with another from the rear is presumed to be at fault. Further, it was the trial court’s reasoning that vehicles should keep a distance of 1.8 metres (6 feet) between them to allow for emergency reaction.
6. Accordingly, the trial court found the appellant wholly liable, upheld the respondent’s counterclaim and dismissed the appellant’s claim.
The Appeal
7. Dissatisfied with the trial court’s decision, the appellant filed a Memorandum of Appeal dated 14 th September 2024 raising the following grounds of appeal, that the Learned Trial Magistrate erred in law and fact:
i. By ignoring the admission by the respondent in his witness statement, that his motor vehicle was in motion at the time of the accident and arriving at a conclusion that is not supported by the evidence on record.
ii. By arriving at a determination on the contents of the police abstract that was not tendered by the maker, and which act was objected and submitted upon by the appellant.
iii. By arriving at a determination based on normative presumption of 1.8 metres safety distance; which contradicts the respondent’s witness statement and is not supported by the evidence on record.
iv. By disregarding the evidence tendered and supported by photographic images taken on the scene of the accident and arriving at a conclusion that is not supported by the evidence on record.
v. By ignoring the evidence in the appellant’s pleadings and submissions which was not controverted, by the respondent.
8. Accordingly, the appellant prayed for the appeal to be allowed and the Judgment of the trial court be set aside.
The Appellant’s Submissions
9. In support of their appeal, the appellant filed their submissions dated 29 th January 2026 contending that the respondent admitted that his vehicle was in motion at the time of the accident, which evidence was improperly disregarded.
10. She also urged that the trial court failed to evaluate or attach any meaningful significance to the photographic evidence of the scene of the accident.
The Respondent’s Submissions
11. In his submissions dated 13 th February 2026 opposing the appeal, the respondent contended the trial court considered his witness statement, whose contents were corroborated by the investigation officer’s testimony and the photographic evidence. Upon considering the foregoing, argued the respondent, the trial Magistrate concluded that the appellant was at fault. As for the police abstract, he contended that it was produced by the author and therefore raised no reasonable ground for appeal.
12. Accordingly, he posited that the appellant failed to discharge the burden of proof and the appeal was unmeritorious. He thus prayed that the appeal be dismissed.
ANALYSIS AND DETERMINATION
13. I have considered the proceedings and judgment of the trial court, the appeal and rival submissions made before me. Being an appeal from the Small Claims Court, this Court’s jurisdiction is restricted to matters of law as set out in Section 38 of the Small Claims Court Act.
14. I will first consider whether the grounds of appeal meet this jurisdictional rubric. Looking at grounds (i), (iv) and (v) of the Memorandum of Appeal, though framed as failures to consider or ignoring evidence, they in substance challenge the trial court’s evaluation and weight of the evidence. However, the learned trial Magistrate expressly considered and rejected the said evidence. In the circumstances, the appellant has not demonstrated that there was a misdirection in law, failure to consider material evidence, or reliance on inadmissible matters. While the complaint on photographic evidence is ostensibly capable of raising a question of law as to whether the findings were supported by the record, the proceedings demonstrate that the evidence was considered alongside the totality of the material and the conclusion reached was one open to the court; no absence or misapprehension of evidence, or error of legal principle, was established. In the result, the foregoing grounds amount to a disagreement with the weight of evidence and the inferences drawn, inviting a re-evaluation of the facts, which lies outside the remit of this Court, and accordingly raise no question of law and fall outside this Court’s jurisdiction.
15. As for ground (ii) of the memorandum of appeal, I have considered the record of appeal. The proceedings are not attached. The Judgment, on its part, merely states that RW2 relied on the OB extract, but it makes no mention of the identity of the said police officer. Neither do the respondent’s pleadings before the trial court capture this. The appellant bears the burden of placing before this Court a complete record to enable determination of the issues raised. In the absence of the proceedings, and with the Judgment being silent on the identity and testimony of RW2, this Court is unable to verify the complaint. The ground therefore fails for want of a proper evidentiary basis.
16. Unlike the foregoing grounds, ground (iii) raises a genuine question of law, the correct legal standard governing following distance, and I therefore proceed to consider it on the merits. While the trial court's articulation of a fixed presumptive distance was not strictly precise, the applicable legal standard is whether the following driver maintained a safe distance sufficient to stop, slow down or take evasive action. See Section 49 of the Traffic Act. This, however, does not avail the appellant, since she bore the burden of establishing that a safe distance was in fact maintained and failed to do so. The trial court's ultimate conclusion, that a safe distance was not maintained, is accordingly sustainable.
17. Even assuming the trial court fell into error, it is common ground that the appellant’s motor vehicle collided with the rear of the respondent’s motor vehicle. It is settled that a driver who collides with another vehicle from the rear is generally presumed to be at fault, absent evidence to the contrary. (See Orioki vs Kevian Kenya Limited (Civil Appeal 341 of 2019) [2025] KECA 780 (KLR) ; Njuguna vs Chogo [1985] KLR 452; Lamek vs Mutungu (Civil Appeal E088 of 2023) [2026] KEHC 2836 (KLR) .
18. The appellant did not proffer any evidence that would have displaced this maxim or brought her within the ambit of the exceptions thereto.
19. In the circumstances, I find no basis to disturb the trial court’s Judgment and the same is upheld. The appeal is dismissed with costs to the respondent.
It is so ordered.
Dated, Delivered and Signed at Nairobi this 16 th day of July 2026.