(Being an Appeal against the Judgment by Hon. Wamae E.M. Muindi in Milimani SCCC No. E1055/2025 Delivered on 19th June, 2025).
1. Many are the decisions which set the duties and the tempo of the appellate court, and whereas I may not be able to exhaust them in this Judgement, I must remark from the outset, that an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. However, the difficult of upsetting the finding of the lower court arises, where, the conclusion has been arrived at on conflicting testimony by a trial court which saw and heard the witnesses. Consequently, the appellate court must keep close to its mind, that it has not enjoyed this opportunity and that the view of the trial court, as to where credibility lies, is entitled to great weight. Put differently, the appellate court has to tip-toe, cautiously. To tip-toe cautiously, does not however, mean that the court is infertile to disturb the conclusion arrived by the trial court, where, demeanor and credibility of a witness, cannot be traced in the proceedings. Thus, logic and common sense, put together.
Hereunder, I submit toward the most eloquent jurisprudential decision, so often repeated, and yet bear repetition from the same family, on the duties of an appellate Court. In Peters Vs Sunday Post Limited(1958) EA 424 , it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide.
In Selle & another Vs Associated Motor Boat Co. Ltd. & others (1968) EA 123 it was stated that the appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the appellate court from a trial by the High Court is by way of retrial and the principles upon which the appellate court acts in such an appeal are well settled. Briefly put, they are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.
In the primary suit, Lilian Nafula Yahuma(CW1) adopted her witness statement as her testimony in chief. The brief facts of the case were that on the 5th day of July 2024 the Claimant’s driver was lawfully driving Motor Vehicle Registration Number KCU 144Y along lower Kabete Road when the driver of Motor Vehicle Registration Number KCU 413Z drove the same in a reckless, careless and negligent Manner causing the same to collide with crash onto and glance along the left-hand side of the Claimant’s car causing actual material damage. The Claimant, in support of her claim produced eight exhibits as set out in the Claimant’s List of Documents being Police Abstract as exhibit 1, assessment fee receipt as exhibit 2, assessment report as exhibit 3, copy of record as exhibit 4, receipt of copy of records as exhibit 5, demand letter as exhibit 6, receipt of demand letter as exhibit 7 and picture of the accident Motor vehicles as exhibit 8. The Claimant now seeks special damages in the sum of Kshs144,650/- interest on the special damages from the date of default and cost of the claim.
2. B hupinder Kaur Dhillon (RW1) B in his statement told court that the accident Motor Vehicle Registration Number KCU 413Z was never involved in an accident on 5th July 2024 as alleged by the Claimant and further states that the Claim is fatally defective as the Claimant has no legal capacity to sue for damages inflicted to the Motor Vehicle Registration Number KCU 144Y. Further, the Respondents states that the defendant being a limited liability Company, cannot in any way, be held vicariously liable unless negligence has been proved against its driver/agent.
3. In the Judgement delivered by the Learned Magistrate, the Appellants were aggrieved with the findings and proffered an Appeal based on the following grounds;
a. That the Learned Resident Magistrate erred in law and fact in holding that there was no rebuttal evidence while the Respondent had filed and served Respondent witness statement dated 6th May 2025
b. That the learned Resident Magistrate erred in law and fact in failing to determine all the issues raised in the pleadings and thereby arriving at a wrong conclusion.
c. That the Learned Resident Magistrate erred in law and fact in holding that the Respondent was wholly liable for the accident without any basis for so holding.
d. That the Learned Resident Magistrate erred in law and fact by failing to appreciate the occurrence that the accident was not proved and rendering the Claimant’s Claim untenable and misplaced.
e. That the Learned Resident Magistrate erred in law and fact by failing to appreciate that the Claimant did not prove ownership of the Motor Vehicle and therefore could not maintain an action in law.
f. That the Learned Resident Magistrate erred in law and fact by failing to appreciate that no liability can flow vicariously against the principal without prove of negligence against the agent.
g. That the Learned Resident Magistrate erred in law and fact by failing to consider the Appellant’s evidence, pleadings and submissions and therefore arriving at wrong decision
h. That the court decision was against the weight of the evidence and submissions made before the court.
4. The Respondent and the Appellants filed written submissions and relied on them in the determination of this Appeal.
Analysis and Determination:
5. This court notes that the appellant settled on 8 grounds for determination. However, looking at the totality of the grounds, I opine to collapse these grounds into one; whether or not the Respondent proved her case on a balance of probability.
6. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that: “Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.” Section 109 states that “the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person” Section 112 reads “In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him.”
7. In Anne Wambui Ndiritu Vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that: “As a general proposition under section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that places upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
8. Undoubtedly, under these provisions of law, two levels of burden of proof must be borne in mind. So that, he who alleges must prove. This is the legal burden. However, when one alleges otherwise in response, it is referred to evidential burden which requires proof to the satisfaction of the court that indeed that particular fact exists. The claimant proved her case by adducing 8 exhibits in support of her witness statement. However, there was no proof that the Motor Vehicle Registration Number KCU 144Y belonged to her. That is to say, the Claimant had no legal capacity to institute these legal proceedings. I note that simultaneously to this appeal, the Claimant has filed a Notice of Motion seeking to introduce a Logbook of Motor Vehicle Registration Number KCU 144Y for sole purpose of acquisition of locus standi after the judgement.
9. On the other hand, the Respondent denied all the allegations of the Claimant. There was no documentary proof of the denials. Put differently, these were mere denials. For instant, when one alleges that the Respondent’s Motor Vehicle was never involved in an accident, and yet a Police Abstract tells otherwise, then under section 112 of the Evidence Act, the evidentiary burden lies upon the Respondent to disapprove the Abstract. When this is not done, we say, there is no rebuttal to the Claimant’s case.
10. Putting all these together, without canvassing the rest of the grounds I make the following findings;
a. The Appeal is partly allowed.
b. The Judgement delivered on 19th June, 2025 is set aside
c. The Notice of Motions dated 17th July 2025 and 20th October 2025 are allowed as prayed.
d. The file is remitted back to the Small Claims Court to start de novo.
e. Each party to bear own costs.
Judgement delivered in Court virtually in the presence of the Court Assistant this 9th September, 2026.
1. Many are the decisions which set the duties and the tempo of the appellate court, and whereas I may not be able to exhaust them in this Judgement, I must remark from the outset, that an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. However, the difficult of upsetting the finding of the lower court arises, where, the conclusion has been arrived at on conflicting testimony by a trial court which saw and heard the witnesses. Consequently, the appellate court must keep close to its mind, that it has not enjoyed this opportunity and that the view of the trial court, as to where credibility lies, is entitled to great weight. Put differently, the appellate court has to tip-toe, cautiously. To tip-toe cautiously, does not however, mean that the court is infertile to disturb the conclusion arrived by the trial court, where, demeanor and credibility of a witness, cannot be traced in the proceedings. Thus, logic and common sense, put together.
Hereunder, I submit toward the most eloquent jurisprudential decision, so often repeated, and yet bear repetition from the same family, on the duties of an appellate Court. In Peters Vs Sunday Post Limited(1958) EA 424 , it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide.
In Selle & another Vs Associated Motor Boat Co. Ltd. & others (1968) EA 123 it was stated that the appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the appellate court from a trial by the High Court is by way of retrial and the principles upon which the appellate court acts in such an appeal are well settled. Briefly put, they are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.
In the primary suit, Lilian Nafula Yahuma(CW1) adopted her witness statement as her testimony in chief. The brief facts of the case were that on the 5th day of July 2024 the Claimant’s driver was lawfully driving Motor Vehicle Registration Number KCU 144Y along lower Kabete Road when the driver of Motor Vehicle Registration Number KCU 413Z drove the same in a reckless, careless and negligent Manner causing the same to collide with crash onto and glance along the left-hand side of the Claimant’s car causing actual material damage. The Claimant, in support of her claim produced eight exhibits as set out in the Claimant’s List of Documents being Police Abstract as exhibit 1, assessment fee receipt as exhibit 2, assessment report as exhibit 3, copy of record as exhibit 4, receipt of copy of records as exhibit 5, demand letter as exhibit 6, receipt of demand letter as exhibit 7 and picture of the accident Motor vehicles as exhibit 8. The Claimant now seeks special damages in the sum of Kshs144,650/- interest on the special damages from the date of default and cost of the claim.
2. B hupinder Kaur Dhillon (RW1) B in his statement told court that the accident Motor Vehicle Registration Number KCU 413Z was never involved in an accident on 5th July 2024 as alleged by the Claimant and further states that the Claim is fatally defective as the Claimant has no legal capacity to sue for damages inflicted to the Motor Vehicle Registration Number KCU 144Y. Further, the Respondents states that the defendant being a limited liability Company, cannot in any way, be held vicariously liable unless negligence has been proved against its driver/agent.
3. In the Judgement delivered by the Learned Magistrate, the Appellants were aggrieved with the findings and proffered an Appeal based on the following grounds;
a. That the Learned Resident Magistrate erred in law and fact in holding that there was no rebuttal evidence while the Respondent had filed and served Respondent witness statement dated 6th May 2025
b. That the learned Resident Magistrate erred in law and fact in failing to determine all the issues raised in the pleadings and thereby arriving at a wrong conclusion.
c. That the Learned Resident Magistrate erred in law and fact in holding that the Respondent was wholly liable for the accident without any basis for so holding.
d. That the Learned Resident Magistrate erred in law and fact by failing to appreciate the occurrence that the accident was not proved and rendering the Claimant’s Claim untenable and misplaced.
e. That the Learned Resident Magistrate erred in law and fact by failing to appreciate that the Claimant did not prove ownership of the Motor Vehicle and therefore could not maintain an action in law.
f. That the Learned Resident Magistrate erred in law and fact by failing to appreciate that no liability can flow vicariously against the principal without prove of negligence against the agent.
g. That the Learned Resident Magistrate erred in law and fact by failing to consider the Appellant’s evidence, pleadings and submissions and therefore arriving at wrong decision
h. That the court decision was against the weight of the evidence and submissions made before the court.
4. The Respondent and the Appellants filed written submissions and relied on them in the determination of this Appeal.
Analysis and Determination:
5. This court notes that the appellant settled on 8 grounds for determination. However, looking at the totality of the grounds, I opine to collapse these grounds into one; whether or not the Respondent proved her case on a balance of probability.
6. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that: “Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.” Section 109 states that “the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person” Section 112 reads “In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him.”
7. In Anne Wambui Ndiritu Vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that: “As a general proposition under section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that places upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
8. Undoubtedly, under these provisions of law, two levels of burden of proof must be borne in mind. So that, he who alleges must prove. This is the legal burden. However, when one alleges otherwise in response, it is referred to evidential burden which requires proof to the satisfaction of the court that indeed that particular fact exists. The claimant proved her case by adducing 8 exhibits in support of her witness statement. However, there was no proof that the Motor Vehicle Registration Number KCU 144Y belonged to her. That is to say, the Claimant had no legal capacity to institute these legal proceedings. I note that simultaneously to this appeal, the Claimant has filed a Notice of Motion seeking to introduce a Logbook of Motor Vehicle Registration Number KCU 144Y for sole purpose of acquisition of locus standi after the judgement.
9. On the other hand, the Respondent denied all the allegations of the Claimant. There was no documentary proof of the denials. Put differently, these were mere denials. For instant, when one alleges that the Respondent’s Motor Vehicle was never involved in an accident, and yet a Police Abstract tells otherwise, then under section 112 of the Evidence Act, the evidentiary burden lies upon the Respondent to disapprove the Abstract. When this is not done, we say, there is no rebuttal to the Claimant’s case.
10. Putting all these together, without canvassing the rest of the grounds I make the following findings;
a. The Appeal is partly allowed.
b. The Judgement delivered on 19th June, 2025 is set aside
c. The Notice of Motions dated 17th July 2025 and 20th October 2025 are allowed as prayed.
d. The file is remitted back to the Small Claims Court to start de novo.
e. Each party to bear own costs.
Judgement delivered in Court virtually in the presence of the Court Assistant this 9th September, 2026.