https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8548

Jilani v Munyao (Civil Appeal E273 of 2025) [2026] KEHC 8548 (KLR) (Civ) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 8548 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E273 of 2025 AC Mrima, J May 22, 2026 Between Agnes Shijehi Jilani Appellant and Urbanus Musembi Munyao Respondent (Being an Appeal from the judgment and decree of Honourable J. W Munene (Adjudicator) in Milimani Small Claims Court Civil Case No. E1694 of 2024, delivered on 7th February 2025) Judgment Background: 1.Urbanus Musembi Munyao, the Respondent herein, instituted a claim against the Appellant, Agnes Shijehi Jillani, in Small Claims Court Civil Case No. E1694 of 2024 (hereinafter referred to as ‘the suit’) seeking compensation for personal injuries arising from a road traffic accident. Briefly, the Respondent pleaded that while riding a motorcycle registration number KMEG 999N along North Airport Road at Cabanas, the Appellant’s motor vehicle registration number KDJ 231R which was driven recklessly and negligently, caused a collision that resulted in the Respondent’s bodily injuries. 2.The Appellant denied liability. She pleaded that if the accident occurred, it was solely due to the Respondent’s negligence. It was her case that the Respondent encroached on her vehicle’s lawful path, rode at a dangerous speed, and lacked the necessary handling skills. 3.Upon hearing the matter, the learned Adjudicator apportioned liability at 70% against the Appellant and 30% against the Respondent on account of contributory negligence. The Court assessed damages and, after factoring in the 30% contribution, awarded the Respondent a net total of Kshs. 591,220/=. 4.It is that judgment that is subject of this decision. The appeal was heard by way of written submissions. The Appeal: 5.Aggrieved by the apportionment of liability, the Appellant filed a Memorandum of Appeal dated 6th March 2025, raising the following grounds: -1.That the Learned Adjudicator erred in law and in fact in apportioning liability at 70% against the Respondent/Appellant herein.2.That the Learned Adjudicator erred in law and in fact in failing to consider the evidence of the Respondent/Appellant herein and failing to find that the Appellant adduced sufficient evidence to prove that the material accident resulted from the negligence of the Claimant/Respondent herein.3.That the Learned Adjudicator erred in law by writing a judgment that is not based on proper evaluation of the pleadings and evidence on record of the Respondent/Appellant herein.4.That in the circumstances, the Judgment of the Learned Adjudicator is a miscarriage of justice. The Submissions: 6.In her submissions dated 1st December 2025, the Appellant argued that the Respondent failed to discharge his burden of proof on a balance of probabilities. The Appellant heavily relied on a Police Abstract dated 2nd November 2023, submitting that it proved the matter had been investigated and the Respondent, was blamed for the accident. 7.The Appellant contended that because the police evidence was not rebutted by the Respondent, the trial Court had no grounds to apportion 70% liability to her. Drawing support from the case of Khambi and Another vs. Mahithi and Another [1968] EA 70, the Appellant argued that the trial Court’s apportionment of liability was manifestly erroneous and ignored material evidence, thereby justifying appellate interference. 8.Based on the above, the Appellant prayed that the appeal be allowed. The Respondent’s case: 9.Despite the directions of 16th December 2025, Counsel for the Respondent did not file any submissions in response to the appeal. Nevertheless, this Court will proceed to determine the appeal on its merit. Analysis and Determination: 10.From the above discourse, the main issue for determination is whether the Respondent discharged his burden of proof in the suit. 11.Before considering the issue, it is important to point out that the jurisdictional scope of an appeal from the Small Claims Court to the High Court is circumscribed by Section 38(1) of the Small Claims Act to only matters of law and that such appeals are final. Without more, there is no doubt that the aspect of burden of proof is a matter of law. 12.Sections 107, 108 and 109 of the Evidence Act deal with the burden of proof in the following manner: -107.Burden of proof.(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.108.Incidence of burden.The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.109.09. Proof of particular fact.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 that fact shall lie on any particular person. 13.The above provisions govern the aspect of the burden of proof. For clarity, there are two limbs of the burden of proof being the legal burden of proof and the evidential burden of proof. Whereas the legal burden of proof is always static on the claimant, the evidential burden of proof initially rests on the claimant, but may shift to the other party depending on the weight of evidence adduced by the claimant. A detailed discussion on this aspect was undertaken by the Supreme Court in Raila Amolo Odinga & another v IEBC & 2 others {2017} eKLR and the Court of Appeal in Mbuthia Macharia -vs- Annah Mutua Ndwiga & another [2017] eKLR. 14.It is now this Court’s duty to apply the above standard to the evidence on record so as to ascertain whether the Respondent, then Claimant, discharged his burden of proof as required in law. 15.The trial Court was presented with two diametrically-opposed factual narratives on the manner in which the subject accident occurred. The Claimant’s witness statement asserted that he was riding his motorcycle when the Appellant’s vehicle was so negligently driven, managed and or controlled that it caused an accident. Conversely, the Appellant’s driver, Arnold Sadi Jilani, provided a witness statement asserting that he was driving at roughly 40KPH when the motorcycle suddenly encroached on his lane and collided with the front left side of the vehicle despite his attempts to swerve. 16.In her submissions, the Appellant asserted that the trial Court completely ignored a Police Abstract that indicated that the matter had been investigated and the rider was blamed for the accident. However, a careful scrutiny of the Police Abstract contained in the Record of Appeal at Page 31 does not support a definitive assertion. The abstract records the details of the vehicles and parties involved, and under “Result of investigations or prosecutions,” it simply notes “P3 To Follow”. It does not explicitly state on its face that the rider was charged or solely blamed. In addition to the foregoing, even if a police officer forms an opinion on culpability, a civil Court is never bound by police conclusions. Civil liability is determined strictly on a balance of probabilities based on the evidence tested in Court. 17.The Appellant’s claim that her evidence was ignored is logically contradicted by the Adjudicator’s final order. The trial Court did not find the Appellant 100% liable; rather, it found the Respondent 30% to blame. The 30% reduction is direct, undeniable proof that the Adjudicator did consider the Appellant’s defence and the driver’s statement regarding the motorcycle’s encroachment. Had the Adjudicator ignored the Appellant’s evidence, liability would have rested entirely on the Appellant. Therefore, the assertion that the Court failed to consider the evidence is factually inaccurate and fails as a ground of law. 18.The Appellant then challenged the specific 70%: 30% liability apportionment ratio. In Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini -vs- A M Lubia and Olive Lubia [1982-88] 1 KAR 727 it was observed that an appellate Court should not interfere with an apportionment of liability save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous. 19.Apportionment of liability is an exercise of judicial discretion based on the trial Court’s assessment of the relative blameworthiness of the parties. Weighing the Respondent’s claim of the vehicle’s sudden acceleration against the Appellant’s claim of the motorcycle’s sudden lane encroachment, the Adjudicator concluded that both parties failed in their duty of care, but the Appellant bore the greater share of the blame. 20.Speaking to the foregoing, the Court in Mbogo and Another -vs- Shah [1968] EA 93, was observed thus;….. an appellate Court should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in law or acted on wrong principles or that he has allowed extraneous matters to influence his decision or that he has failed to take into consideration a matter which he should have taken into consideration and as a result thereof arrived at a wrong conclusion. 21.Flowing from the above, it is this Court’s finding that the Appellant did not point to any specific legal principle that the Adjudicator misapplied in reaching the ratio. In such a scenario, requesting this Court to shift the ratio from 70%: 30% to a whole apportionment upon the Respondent based on the exact same witness statements, without more, is a request for a purely factual re-evaluation. Since the Adjudicator’s finding is anchored in the conflicting evidence on record, it is not perverse. It does not qualify as an error in principle or a manifestly erroneous finding as to elevate it to a matter of law under Section 38 of the Small Claims Court Act. 22.This Court, therefore, finds that the trial Court handled the aspect of burden of proof properly and there is no legal basis to interfere with the apportionment of liability. The appeal is, hence, unmerited. Disposition: 23.As I come to the end of this judgment, I wish to apologize to the parties for the late delivery of this decision which was to be in February 2026. The delay was occasioned by my engagement at the Judicial Service Commission where I serve as a Commissioner given that the Commission has been running interviews since December 2025 to date. Once again, galore apologies. 24.Consequently, the following final orders hereby issue: -(a)The Appeal is hereby dismissed.(b)As the Respondent did not participate in this appeal, there shall be no orders as to costs.Orders accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 22ND DAY OF MAY,2026.A.C. MRIMAJUDGEJudgment virtually delivered in the presence of:Miss Craita, Learned Counsel for the Respondent.Miss Gichohi, Learned Counsel for the Appellant.Michael/Amina – Court Assistants.