https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8560

Obiero v Makena (Civil Appeal E142 of 2025) [2026] KEHC 8560 (KLR) (Civ) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 8560 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E142 of 2025 AC Mrima, J May 22, 2026 Between Alex Otieno Obiero Appellant and Sharon Makena Respondent (Being an appeal against the Judgment and Decree of Hon. Wamae E. M. Muindi (RM & Adjudicator) in Small Claims Court Civil Case No. E5029 of 2024 delivered on 23rd January 2025) Judgment Background: 1.On 23rd January 2025, the trial Court entered judgment in favour of Sharon Makena, the Respondent herein. It found Alex Otieno Obiero, the Appellant herein, 100% liable for a road accident that occurred on 14th November 2021. It awarded the Respondent Kshs 382,560/- for material damage occasioned to her vehicle and Kshs 45,000 as costs. 2.The judgment was appealed against to this Court and the appeal was heard by way of written submissions, hence, this judgment. The Appeal: 3.The Appellant filed a Memorandum of Appeal dated 13th February 2025 raising the following grounds: -1.That the honourable learned Adjudicator erred in law and fact by finding the Appellant liable for the accident 100% despite there being no evidence in support of the same.2.That the Honourable learned adjudicator erred in Law by failing to address herself to the allegation of negligence entirely in to establish liability in her Judgement.3.That the Honourable Learned Adjudicator erred in law and fact by finding that there was not enough evidence to support the Appellant’s assertions that at no point did his car collide with the Respondent’s.4.That the Honourable learned adjudicator erred in Law and fact by heavily relying on a police abstract as evidence of negligence and liability despite there being no OB Extract, police statements or investigative report supporting the same.5.That further to paragraph 4 above, the Learned adjudicator erred in law and fact in failing to take cognizance that the failure by the Respondent herein to comply orders issued on 3rd December, 2024 requiring the Respondent to avail the OB extract rendered the respondent unable to prove her claim.6.That the Honourable learned Adjudicator erred in law and misdirected herself in failing to consider all the evidence tendered by the Appellant while arriving at the judgment.7.That the learned trial Court erred both in law and fact by shifting the burden of proof to the Appellant albeit without the Respondent discharging their burden of proof on their claim. The Appellant’s submissions: 4.In his written submissions dated 14th April 2025, the Appellant contended that the appeal raised valid matters of law. He argued that the standard of proof and the question whether a trial Court properly evaluated evidence to reach a determination supported by law are legal issues. To support the claimed jurisdictional threshold, the Appellant relied on the case of Peter Gichuki King’ara -vs- IEBC and 2 others Nyeri civil appeal No. 31 of 2013 and Ogwari -vs- Hersi (Civil Appeal 223 of 2022). Further, the Appellant argued that an appellate Court can interfere with findings of fact if no reasonable Tribunal could have reached that conclusion on the evidence, rendering the decision bad in law. To that end, he referred to various decisions, among them the one in Charles Kipkoech Leting -vs- Express (K) Ltd & another [2018] eKLR. 5.On merits of the appeal, the Appellant submitted that the Respondent failed to discharge the burden of proving negligence. He argued that a Police Abstract is merely an administrative document and not conclusive proof of liability without corroborating evidence like an investigative report or sketch map. He drew support from the authority in Techard Steam & Power LTD -vs- Mutio Muli & another (2019) eKLR, Wangongu -vs- Kithinji & 2 others (Civil Appeal 293 of 2023) [2024] KEHC 6272 (KLR), and Stephen Kanjabi Wariari -vs- Dennis Mutwiri Muriuki & another [2022] eKLR. Emphasizing that liability requires proof of fault, the Appellant called to its aid the decision in East Produce Kenya Limited -vs- Christopher Astiado Osiro Civil Appeal No 43/01 and Kiema Mutuku -vs- Kenya Cargo Hauling Services 1991. 6.The Appellant concluded that the Respondent failed to meet the preponderance of probabilities standard. He referred to the decision in Miller -vs- Minister of Pensions [1947] 2ALL. ER 372 and Nahashon Chege v Stephen Makabila & another [2018] eKLR. 7.The Appellant then prayed that the appeal be allowed, the judgment be set-aside and the claim be dismissed. The Respondents’ case: 8.Sharon Makena challenged the appeal through written submissions dated 28th April 2025. It was her case that under Section 38 of the Small Claims Court Act, the High Court only has jurisdiction to hear appeals on matters of law and that the Adjudicator had the final say on facts and evidence. She categorized grounds 1, 3, 4, 5, and 6 of the Memorandum of Appeal as matters of fact outside this Court’s jurisdiction. To define a matter of law, the Respondent cited Twaher Abdulkarim Mohamed -vs- Independent Electoral and Boundaries Commission (IEBC) & 2 others, (2014) eKLR and Watu Credit Limited Versus Randu (Civil Appeal 365 of 2023) [2024] KEHC 4430 (KLR). 9.The Respondent maintained that she discharged her burden of proof beyond a reasonable doubt by establishing duty of care, breach, and resulting damage. She drew support from Mary Njeri Murigi -vs- Peter Macharia & Another (2016) eKLR to underscore a driver’s duty to other road users. The Respondent relied on the Police Abstract as uncontroverted evidence blaming the Appellant, and noted that while the OCS Industrial Area Police Station did not provide the OB to the Court, the trial Court properly proceeded on the available documents. 10.Relying on the longstanding precedent set in Mbogo & Another -vs- Shah [1968] EA and Stephen Mwallyo Mbondo -vs- County Government of Kilifi (2021) eKLR, the Respondent argued that an appellate Court should not interfere with a trial Court’s discretion unless it misdirected itself or was clearly wrong, which the Appellant failed to demonstrate. Analysis and Determination: 11.Based on the trial record, the grounds of appeal, the parties’ submissions and the decisions thereto, the following issues arise for determination: -i.Whether the appeal raises matters of law within the purview of Section 38(1) of the Small Claims Court Act.ii.Depending on (i) above, whether the Respondent discharged the legal burden of proof to establish negligence. 12.A consideration of the above issues follows in seriatim. Whether the appeal raises matters of law within the purview of Section 38(1) of the Small Claims Court Act: 13.Suffice to state that this Court’s jurisdiction on appeals from the Small Claims Court is limited to matters of law as provided for under Section 38 of the Small Claims Court Act [Cap.10A] of the Laws of Kenya and that the decision thereof is final. Whereas there has been no universally accepted definition of the term ‘matters of law’, there has been some working definitions thereto. The term ‘point of law’ may also be referred to as ‘matter of law’. The Black’s Law Dictionary defines ‘a matter of fact’ and ‘a matter of law’ as follows: -Matter of fact: A matter involving a judicial inquiry into the truth of alleged facts and Matter of law: A matter involving a judicial inquiry into the applicable law. 14.Lord Denning, J in Bracegirdle vs. Oxley (2) [1947] 1 ALL E.R. 126 at p 130 in espousing the two terms had the following to say: -…. The question whether a determination by a tribunal is a determination in point of fact or in point of law frequently occurs. On such a question there is one distinction that must always be kept in mind, namely, the distinction between primary facts and conclusions from those facts. Primary facts are facts which are observed by the witnesses and proved by testimony; conclusions from those facts are inferences deducted by a process of reasoning from them. The determination of primary facts is always a question of fact. It is essentially a matter for the tribunal who sees the witnesses to assess their credibility and to decide the primary facts which depend on them. The conclusions from those facts are sometimes conclusions of fact and sometimes conclusions of law. In a case under the Road Traffic Act, 1930, s. 11, the question whether a speed is dangerous is a question of degree and a conclusion on a question of degree is a conclusion of fact. The court will only interfere if the conclusion cannot reasonably be drawn from the primary facts, and that is the case here. The conclusion drawn by these justices from the primary facts, was not one that could reasonably be drawn from them. 15.Drawing from the above, the Court of Appeal in Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others [2014] eKLR sated as under: -…. That reasoning has been adopted in this jurisdiction. In A.G. Vs. DAVID MURAKARU [1960] EA 484, for instance, Chief Justice Ronald Sinclair sitting with Rudd J. adverted to the factual foundations of legal questions by stating that an appellate court restricted to determining questions of law may yet quite properly interfere with the conclusion of a lower court if the same is erroneous in point of law. This is the case where that lower court arrives at a conclusion on the primary facts that it could not reasonably come to. Such a conclusion or decision becomes an error in point of law. See also PATEL vs. UGANDA [1966] EA 311 and SHAH Vs. AGUTO [1970] EA 263. 16.Earlier, the Court of Appeal in M’riungu and Others -vs- R [1982-88] 1 KAR 360 observed thus: -…. We would agree with the views expressed in the English case of Martin v Glyneed Distributors Ltd (t/a MBS Fastenings) [1983] 1 CR 511 that where a right of appeal is confined to questions of law only, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of law or mixed findings of fact and law, and, it should not interfere with the decision of the trial of first appellate court unless it is apparent that; on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad law. 17.Later, the Court of Appeal in Charles Kipkoech Leting -vs- Express (K) Ltd & another [2018] eKLR discussed what entails matters of laws as the Court considered its role as a second appellate Court. It observed thus;…. Our mandate is as has been enunciated in a long line of cases decided by the Court. See Maina -vs- Mugiria [1983] KLR 78, Kenya Breweries Ltd v Godfrey Odongo, Civil Appeal No. 127 of 2007, and Stanley N. Muriithi & another v Bernard Munene Ithiga [2016] eKLR, for the holdings inter alia that, on a second appeal, the Court confines itself to matters of law only, unless it is shown that the Courts below considered matters, they should not have considered or failed to consider matters they should have considered or, looking at the entire decision, it is perverse….. 18.And, in Peter Gichuki King'ara vs. IEBC & 2 others, Nyeri Civil Appeal No. 31 of 2013, Court of Appeal held that a decision challenged on the basis of wrongful exercise of discretion raises a point of law. [See also Twaher Abdulkarim Mohamed v Independent Electoral and Boundaries Commission (IEBC) & 2 others, (2014) eKLR]. 19.From the foregoing, an appeal on matters of law calls upon the appellate Court to steer clear of findings of fact derived from primary evidence and to also restrain itself from treating findings of fact as holdings of law or mixed findings of fact and law unless the findings are so perverse as to defeat the object of justice. 20.In discharging its appellate role in matters from the Small Claims Court, the High Court should remain alive to the rationale behind the establishment of the Small Claims Court as a special and unique Court which is different from the mainstream civil Courts. It must always be remembered that the focal point of the Small Claims Courts is expeditious disposal of cases and that is why the Court is not bound by the strict rules of evidence [Section 32 of the Small Claims Court Act] and further the Court has power to control of its own procedure in determining any claim before it subject to regard to the principles of natural justice [Section 17 of the Act]. The High Court, therefore, is duty-bound to assist the Small Claims Court realize it’s said objective and it ought to consider appeals from the said Court through those special lenses in view of the various decisions referred to above. 21.Drawing from the foregoing, it emerges that, if a Court arrives at a conclusion on the primary facts that no reasonable Court or Tribunal could have reached, that conclusion becomes an error in point of law. This Court will, therefore, reconsider the appeal to that narrow extent. Whether the Respondent discharged the legal burden of proof to establish negligence: 22.The entirety of this issue revolves around the trial Court’s application of Sections 107, 108 and 109 of the Evidence Act. The said provisions provide thus;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. 23.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. 24.Coming back to the case at hand, and having gone through the record, it is imperative to note that the hearing of the claim was pursuant to Section 30 of the Small Claims Court Act where parties relied on the documents they filed on record, and also filed written submissions. Thereafter, the trial Court rendered the impugned judgment. 25.This Court has taken the liberty to carefully consider the trial record in its bid to ascertain the manner in which the issue of burden of proof was handled. The then Claimant, now Respondent, filed her statement alongside those of the driver of her car during the accident who was her brother one Brian Munene and that of a Legal Officer from her insurer. She also filed several documents in support of the claim. The statement of claim clearly stated that the suit was brought under the doctrine of subrogation. 26.The Respondent’s insurers’ claim form contains the statement of the driver of the Respondent’s car. He stated that he was driving the car on a road whose lanes were separated by barriers. Suddenly, the Appellant’s car which was on the opposite lane rammed into the barriers and hit the Respondent’s car. That position was supported by the contents of the Police Abstract which was issued after the police visited the scene, carried out investigations and found the Appellant to blame for the accident. With such evidence on the part of the Respondent, the evidential burden of proof then shifted to the Appellant. It was the Appellant’s time to adduce evidence rebutting the Respondent’s evidence. On his part, the Appellant admitted hitting the barriers from the opposite lane which action eventually caused the accident. To this Court, the Appellant’s evidence, indeed, further corroborated that of the Respondent. Having admitted hitting the barrier which separated the lanes and which action occasioned the accident, this Court finds that the Appellant failed to discharge the evidential burden and as a result was correctly found to have caused the accident. Given the circumstances under which the accident occurred, the Respondent’s driver cannot be blamed or at all. The blame wholly rested on the Appellant and the trial Court so found. 27.To this Court, therefore, the trial Court correctly found the Appellant wholly liable for causing the accident, and, in arriving at such a finding did not commit any error of law. Disposition 28.As I come to the end of this ruling, I wish to apologize to the parties for the late delivery of this decision which 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. 29.Consequently, the following final orders hereby issue: -(a)The Appeal is hereby dismissed and the Judgment of the Small Claims Court delivered on 23rd January 2025, in SCCC No. E5029 of 2024 and the decree thereof, are hereby affirmed.(b)The Appellant shall bear the costs of the appeal.Orders accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 22ND DAY OF MAY,2026.A.C. MRIMAJUDGEJudgment virtually delivered in the presence of:Miss Oliwa, Learned Counsel for the Respondent.Michael/Amina – Court Assistants.