https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7345

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI COUNTY COURT NAME: MILIMANI HIGH COURT CASE NUMBER: HCCA/E665/2024 ABIGAEL TIMINAH 1st Appellant - Versus - MIRIAM WALO OMOLO OIRO 1st Respondent JUDGMENT *(Being an appeal from the Judgment and Decree of the Small Claims Court at Nairobi (Hon. R. Kimeu, Adjudicator) dated 24th April 2024 in SCCC No. E4822 of 2023)* **JUDGMENT** 1. **INTRODUCTION AND BACKGROUND** 1. This appeal arises from the Judgment and Decree of the Small Claims Court at Nairobi, delivered by Hon. R. Kimeu on 24th April 2024 in Small Claims Court Claim No. E4822 of 2023. The Appellant, Abigael Timinah Wabwile, was the Claimant in the lower court, where she sought general and special damages for personal injuries sustained in a road traffic accident. 2. The Respondents, Miriam Walo Omolo Oiro and Joy Omolo, were sued as the registered owner and driver, respectively, of motor vehicle registration number KDE 921T. The dispute centered on a collision involving the Respondents’ vehicle and a motorcycle on which the Appellant was traveling. 3. The underlying facts indicate that on 15th April 2023, the Appellant was riding as a lawful pillion passenger onboard motorcycle registration number KMEH 211D along Ngong Road, Nairobi. It was the Appellant’s case that the 2nd Respondent so negligently managed or steered motor vehicle registration number KDE 921T that she caused it to collide with the motorcycle, occasioning severe bodily injuries to the Appellant. 4. In response, the Respondents denied all allegations of negligence and successfully joined the motorcycle rider, Daniel Lugaliki alias Loveto Lukaliki, as a Third Party to the suit, contending that his reckless riding was the sole cause of the accident. 5. Upon hearing the evidence presented by the parties, the learned trial adjudicator concluded that although the Appellant had satisfactorily established her physical injuries, liability for the accident rested 100% on the Third Party rider. 6. Consequently, the trial court dismissed the Appellant’s claim against the 1st and 2nd Respondents and ordered that judgment be entered against the Third Party. 7. Dissatisfied by this determination, the Appellant preferred the instant appeal through a Memorandum of Appeal dated 20th May 2024, raising several grounds, primarily challenging the trial court’s evaluation of liability and the procedural propriety of the third-party proceedings. # THE APPELLANT’S SUBMISSIONS 1. The Appellant argues that the learned trial adjudicator erred fundamentally in both law and fact by misapprehending the weight of the evidence on record, leading to an erroneous finding on liability. It is submitted that the lower court failed to consider the direct, oral testimony of the Appellant (PW1), which established that the 2nd Respondent executed a sudden, negligent left-hand turn into Eldon Apartments without signaling or keeping a proper lookout. This maneuver, according to the Appellant, completely obstructed the path of the oncoming motorcycle and directly triggered the collision. 2. It is further submitted by the Appellant that the trial court ignored vital pieces of corroborative evidence, including the police sketch map and the uncontroverted CCTV footage available at the scene. 3. The Appellant highlights that the testifying police officer (CW2) read from the Occurrence Book (OB No. 25/02/04/2023) and explicitly stated that criminal investigations into the accident were still active and incomplete. Therefore, the Appellant contends that the trial adjudicator’s finding that the police had concluded their investigations and blamed the motorcycle rider was a profound misdirection. 1. On procedural grounds, the Appellant vehemently objects to the enjoining and subsequent finding of liability against the Third Party. The Appellant stresses that there was an incurable confusion regarding the identity of the Third Party, who was variably referred to as “Daniel Lugaliki” and “Loveto Lukaliki” across different police records, and that no National Transport and Safety Authority (NTSA) search was produced to prove ownership of the motorcycle. 2. Most critically, the Appellant points out that no valid affidavit of service was filed on record to prove that the Third Party was ever served with the third- party notice, rendering him unrepresented and condemned unheard. 3. Summing up her arguments, the Appellant positions herself as an innocent pillion passenger entitled to full recovery from the Respondents, as they were active participants in the accident. She insists that the third-party procedure was a sham utilized by the Respondents to evade their civil obligations. She therefore urges this Court to allow the appeal, set aside the lower court’s orders dismissing the claim against the Respondents, and hold the 1st and 2nd Respondents jointly and severally liable for the damages pleaded. # THE RESPONDENTS’ SUBMISSIONS 1. The Respondents oppose the appeal and submit that the trial court’s judgment is legally sound, meticulously reasoned, and entirely rooted in the factual matrix placed before it. They contend that the 2nd Respondent was driving along Ngong Road with due care when the motorcycle rider, travelling at an extremely high speed and failing to keep a safe distance, rammed into their vehicle. The Respondents insist that the 2nd Respondent had already completed the better part of her left-hand turn when the reckless rider struck her vehicle, making the rider the sole proximate cause of the accident. 2. The Respondents rely heavily on the official police abstract produced during the trial, which explicitly blamed the motorcycle rider for careless riding and failing to keep a proper lookout. They submit that the trial adjudicator, having had the unique advantage of observing the demeanor of the witnesses and evaluating the contemporaneous police records firsthand, arrived at the correct conclusion of fact. They caution that an appellate court should not lightly disrupt such findings of fact unless they are demonstrated to be completely perverse or unsupported by any shred of evidence. 1. Addressing the Appellant’s procedural complaints regarding the third-party process, the Respondents argue that the assertions of non-service and misidentification are legally hollow. They invite this Court to examine the lower court record, which reveals that on 19th January 2024, an advocate by the name of Mr. Gichira entered an appearance and actively appeared on behalf of the Third Party. The Respondents submit that the physical appearance of legal counsel on behalf of the Third Party effectively cured any alleged defects in service or minor misnomers in the spelling of the party’s name. 2. Finally, the Respondents remind this Court of the legislative mandate underpinning the Small Claims Court, specifically Section 32 of the Small Claims Court Act, 2016, which frees the court from rigid, technical rules of evidence and procedure. They submit that the lower court operated within its lawful authority to achieve substantive justice by holding the actual wrongdoer accountable. 3. The Respondents conclude by praying that the appeal be dismissed with costs and the trial court’s orders be affirmed in their entirety. # ISSUES FOR DETERMINATION 1. Having meticulously reviewed the pleadings, the grounds of appeal, the trial record, and the rival written submissions, this Court isolates the following **two issues** as central to the determination of this appeal: * 1. *Whether the learned trial adjudicator erred in law and fact in the assessment and apportionment of liability by finding the Third Party solely to blame and exonerating the Respondents.* 2. *Whether the procedural challenges raised concerning the third-party procedure vitiated the trial court’s proceedings and final judgment.* # ANALYSIS AND DETERMINATION ***Whether the learned trial adjudicator erred in law and fact in the assessment and apportionment of liability by finding the Third Party solely to blame and*** ***exonerating the Respondents.*** 1. The resolution of this issue must begin with a clear understanding of the role of a first appellate court when confronted with findings of fact made by a trial court. It is a long-standing principle that a first appellate court has a duty to reconsider the evidence, evaluate it independently, and draw its own conclusions. 2. The above structural approach was set out in the locus classicus case of **Selle & Another v. Associated Motor Boat Company Ltd & Others [1968] EA 123**, where it was stated that: *“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this 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 particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.* 1. Further in **Mwangi v Wambugu [1984] KLR 453** the Court of Appeal stated that: *“A Court of Appeal will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence or the judge is shown demonstrably to have acted on wrong principle in reaching the finding; and an appellate court is not bound to accept the trial judge’s finding of fact if it appears either that he has clearly failed on some material point to take account of particular circumstances or probabilities material to an estimate of the evidence, or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”* 1. Therefore an appellate court must always remain mindful that it has neither seen nor heard the witnesses testify, and should therefore be slow to interfere with findings of fact unless the trial court is shown to have acted on wrong principles or arrived at a conclusion that is plainly untenable. 1. In actions founded on the tort of negligence, the legal burden remains static and is governed by Sections 107 and 108 of the Evidence Act (Cap 80). The law mandates that he who asserts must prove, meaning the Appellant bears the primary obligation to demonstrate that her injuries were caused by a breach of a duty of care owed by the specific defendant. This statutory allocation of proof was emphasized by Nyamweya, J. in **Nickson Muthoka Mutavi v Kenya Agricultural Research Institute [2016] eKLR**, where it was stated: *“The burden of proof in an action for damages for negligence rests primarily on the plaintiff, who, to maintain the action, must show that he was injured by a negligent act or omission for which the defendant is in law responsible. This involves the prove of some duty owed by the defendant to the plaintiff, some breach of that duty, and an injury to the plaintiff between which and the breach of a causal connection must be established.”* 1. Noting that a successful claim requires establishing a direct, unbroken causal connection between the negligent act of the defendant and the resultant injury. If the probabilities are equal, or if the evidence points to another actor entirely, the claimant’s case against that specific defendant cannot stand. 2. Turning to the physical mechanics of the collision along Ngong Road, the trial record presents two competing narratives. The Appellant positions the 2nd Respondent as an erratic motorist who cut across traffic, while the Respondents describe an orderly turn disrupted by an oncoming, speeding motorcycle. 3. To break this deadlock, the trial court was required to look at the contemporaneous physical evidence, most notably the police sketch map drawn immediately after the incident. The sketch map revealed that the impact occurred at a point where the Respondents’ vehicle had already established its turning lane and entered the mouth of the junction leading to Eldon Apartments, indicating that the vehicle did not suddenly materialize in front of the motorcycle. 4. The Appellant attempts to impeach this finding by relying on the testimony of the police officer (CW2), who observed that investigations into the criminal aspect of the file were technically pending. However, civil liability operates on an entirely different plain from criminal culpability. The lower court was presented with an official police abstract which explicitly recorded that the motorcycle rider was to blame for the accident. While a police abstract is not absolute proof of negligence, it carries significant evidential weight as a contemporaneous document compiled by public officers in the course of duty, and the trial adjudicator was entitled to weigh it against the oral testimonies. 1. The standard of proof applied in civil trials is the balance of probabilities, a threshold beautifully defined by Lord Denning in **Miller v Minister of** **Pensions [1947] 2 All ER 372**. It requires the court to say, “we think it more probable than not”. In cases involving rear-end or side-impact collisions where a vehicle is already executing a visible turn, a heavy evidential burden shifts to the following or approaching vehicle to explain why it could not slow down or avoid the impact. The speed of the motorcycle and the failure of its rider to maintain a proper lookout or keep a safe distance emerge as the dominant, effective factors that transformed a routine turn into a harmful collision. 1. It is instructive to note the case of **Mbogo & Another v. Shah [1968] EA 93**, which mandates that an appellate court will not substitute its own discretion or factual assessment for that of the trial court unless the lower court misdirected itself or ignored relevant factors. The learned adjudicator heard the live testimonies of the parties, weighed the contents of the police documents, and assessed the physical representations of the road layout. The conclusion that the motorcycle rider acted as the sole proximate cause of the accident is an inference perfectly supported by the physical configuration of the impact site as detailed in the sketch map. 1. Consequently, this Court finds no trace of perversity, misdirection, or caprice in the trial court’s finding on liability. The Appellant’s position as an innocent passenger does not automatically mean that every vehicle involved in a crash shares civil liability; liability must follow the path of actual blameworthiness. 2. Since the evidence firmly establishes that the Third Party’s reckless navigation was the efficient cause of the accident, the trial adjudicator was entirely justified in placing 100% liability on him and exonerating the Respondents. The grounds of appeal challenging the apportionment of liability are therefore unmeritorious. ***Whether the procedural challenges raised concerning the third-party procedure vitiated the trial court’s proceedings and final judgment.*** 1. The second front of the Appellant’s attack targets the procedural framework through which the Third Party was brought into the suit and subsequently found liable. Third-party procedure, governed by civil procedure rules, is designed to enhance judicial economy by ensuring that a defendant can seek contribution or indemnity from the true wrongdoer within the same judicial ecosystem. It protects a defendant from being saddled with damages that are properly attributable to another actor, thereby allowing the court to distribute ultimate liability in a single, comprehensive judgment. 1. The Appellant contends that because there was a misnomer regarding the name of the rider (Daniel Lugaliki versus Loveto Lukaliki), an absence of a verified NTSA search, and a lack of an affidavit of service documenting formal service of the third-party notice, the entire third-party structure was a nullity. 2. The Appellant invokes these omissions to suggest that the trial court condemned an unserved and undefended stranger, thereby compromising the integrity of the entire decree. To assess the validity of this argument, this Court must look past formalistic objections and examine the specific statutory mandate of the forum in question. 3. The originating suit was litigated before the Small Claims Court, a specialized statutory court established under the **Small Claims Court Act, 2016**. Section 4 of the Act expressly requires the court to adopt measures that guarantee the timely disposal of proceedings, equality of parties, fairness of process, and, crucially, simplicity of procedure. The legislature intentionally sought to strip away the dense, rigid procedural thickets that historically choked regular civil courts, creating a streamlined avenue where substantive disputes could be resolved expeditiously without being derailed by formalistic maneuvers. 1. This objective is further fortified by Section 32 of the Small Claims Court Act, 2016, which provides that the court is not bound wholly by the technical rules of evidence or formal civil procedure. It grants the adjudicator wide latitude to admit evidence and manage the conduct of trials in a manner that serves the ends of justice, notwithstanding that such evidence might fail the strict tests of admissibility in higher courts. This statutory framework is a direct legislative realization of **Article 159(2)(d) of the Constitution of Kenya, 2010**, which elevates substantial justice above the worship of procedural technicalities. 1. The Supreme Court of Kenya in the landmark case of **Raila Odinga & 5 Others v Independent Electoral and Boundaries Commission & 3 Others** **[2013] eKLR** solidifies this philosophy by holding that courts must never allow procedural technicalities to override the primary duty of administering substantive justice. 1. In the present case, a review of the trial court’s record exposes a fact that completely neutralizes the Appellant’s claim of non-service: on 19th January 2024, an advocate by the name of Mr. Gichira entered an appearance and represented the Third Party during the proceedings. It is a rule of civil practice that once a party instructs counsel to appear on their behalf in a matter, they submit to the jurisdiction of the court, and any prior defects in the formal service of process are effectively waived and cured. 2. Regarding the variance between the names “Daniel” and “Loveto,” and the absence of an NTSA ownership search, these are classic examples of form attempting to defeat substance. The police abstract and the statements recorded at the police station left no doubt as to the physical identity of the individual who was operating the motorcycle KMEH 211D on the material date. A technical misnomer or the lack of an official registration printout does not change the identity of the tortfeasor whose physical negligence caused the collision. In a court guided by simplicity and substantial justice, the true identity of the actor overrides any typographical discrepancies in the pleadings. 3. Ultimately, the third-party procedure adopted by the lower court achieved exactly what the law intended: it identified the actual author of the tort and entered judgment against him. The Third Party had legal representation, and the trial court acted within its expansive statutory boundaries under the Small Claims Court Act to determine the true allocation of blame. 4. There was no miscarriage of justice, nor was there any procedural prejudice suffered by the Appellant, who retained her right to execute the decree against the found tortfeasor. Consequently, the procedural grounds of appeal must also fail. # COURT ORDERS 1. In the final analysis, this Court finds that the learned trial adjudicator properly evaluated the evidence, correctly applied the law on civil negligence, and appropriately utilized the flexible procedures of the Small Claims Court to deliver a just and convincing decision. There are no grounds warranting the intervention of this appellate court. 2. Accordingly, the Court issues the following final orders: 3. *The Appeal preferred by the Appellant is hereby dismissed in its entirety.* 4. *The Judgment and Decree of the Small Claims Court at Nairobi in SCCC No. E4822 of 2023 is hereby upheld* 5. *The Costs of this appeal are awarded to the 1st and 2nd Respondents.* # DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 28TH DAY OF MAY 2026. **BENARD WAFULA MURUNGA JUDGE OF THE HIGH COURT** **In the Presence of:** Munge for Appellants ..............for Respondent Abdirazak Abdi - Court Assistant SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE BENARD WAFULA MURUNGA** Milimani High Court High Court Civil Appellate Division Date: 2026-05-28 10:48:44