Muriithi v SLM Woodworks Ltd (Civil Appeal E183 of 2025) [2026] KEHC 11320 (KLR) (23 July 2026) (Judgment)

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU COUNTY COURT NAME: THIKA HIGH COURT CASE NUMBER: HCCA/E183/2025 BERNARD MURIITHI VS SLM WOODWORKS LIMITED JUDGMENT ***(Being an Appeal from the Judgement of the Adjudicator M.W Kamau, delivered on 3rd July 2025 at the Small Claims Court at Thika)*** # INTRODUCTION * 1. This is an Appeal from the Judgment of the Small Claims Court at Thika in Claim No. E552 of 2024, delivered on 3rd July, 2025 by the Adjudicator, M.W Kamau, Resident Magistrate. # BRIEF FACTS 1. The Claimant (now the Respondent) filed an Amended Statement of Claim dated 16th August 2024. The Claimant averred that on 26th June 2021, its authorized driver was lawfully driving motor vehicle registration number KCZ 815W along Thika Road at Githurai when the 2nd Respondent, through its authorized driver, servant and/or agent, negligently drove motor vehicle registration number KBT 353Y and caused it to collide with the Claimant’s vehicle. As a consequence of the collision, the Claimant’s motor vehicle sustained extensive damage, prompting the claim against the Respondents. 2. The 1st Respondent in the trial court failed to enter appearance or file a response despite having been duly served. The 2nd Respondent (now the Appellant) entered appearance and filed a response to the Statement of Claim. While admitting the occurrence of the accident, the 2nd Respondent pleaded that the same was wholly or substantially contributed to by the negligence of the Claimant. 3. The Claimant produced a Police Abstract confirming that the accident had been reported and a search from the National Transport and Safety Authority (NTSA) confirming that motor vehicle registration number KBT 353Y belonged to the 1st Respondent. The 2nd Respondent, however, admitted that he was the driver of the said motor vehicle on the material day and maintained that it was the Claimant who caused the initial accident by colliding with the vehicle ahead of it, thereby causing the 2nd Respondent’s vehicle to hit the rear of the Claimant’s vehicle. According to the 2nd Respondent, this version of events was corroborated by the photographs produced in evidence, which showed damage to the front of the Claimant’s vehicle. The matter came up for hearing on several occasions, but the Claimant’s driver did not attend court to testify. Upon considering the evidence tendered, the trial court apportioned liability equally between the Claimant and the 2nd Respondent at 50:50 and awarded damages in the sum of Kshs. 399,091.50, with each party bearing its own costs. 4. Aggrieved by the said judgment, the Appellant filed a Memorandum of Appeal founded on the following grounds: 1. *That the learned Adjudicator erred in law in apportioning 50% liability to the 2nd Respondent despite having expressly found that the 2nd Respondent’s evidence attributing blame to the Claimant’s driver was uncontroverted.* 2. *That the learned Adjudicator erred in law and fact by relying on a suspicious Police Abstract produced by the Claimant, yet the maker of the said document was not called as a witness and the 2nd Respondent was thereby denied an opportunity to cross-examine the maker and challenge the alleged inconsistencies therein.* 3. *That the learned Adjudicator erred in law by apportioning 50% liability against the 2nd Respondent despite the Claimant having failed to prove, on a balance of probabilities, the essential elements of its claim and the alleged responsibility of the 2nd Respondent.* 4. *That the learned Adjudicator failed to properly consider the 2nd Respondent’s direct and uncontroverted testimony, which attributed the accident and the resultant damage to the rear of the Claimant’s vehicle wholly to the negligence of the Claimant’s driver, who allegedly drove recklessly and overtook improperly, thereby causing the entire accident.* # SUBMISSION BY PARTIES ## Appellant’s Submissions 1. On the first issue, namely whether the learned magistrate erred in finding the Appellant’s evidence to be uncontroverted yet proceeded to apportion liability against him, the Appellant submitted that the learned trial magistrate expressly found that the Appellant’s evidence was uncontroverted but subsequently departed from that finding in determining liability. The Appellant argued that where evidence is uncontroverted, unchallenged and unimpeached, the logical and legal consequence is that such evidence ought to be accepted as establishing the facts deposed therein. 2. The Appellant further submitted that the learned magistrate erred in apportioning liability notwithstanding the uncontroverted evidence on record. It was contended that the learned magistrate fell into error by allowing the mere fact that the Appellant’s vehicle struck the rear of the Respondent’s vehicle to override the finding that the Appellant’s evidence exonerating himself was unchallenged. According to the Appellant, such an approach fails to appreciate that a rear-end collision, without more, does not automatically establish liability. Rather, the circumstances surrounding the collision, the conduct of the parties, and the totality of the evidence must be considered in determining liability. 3. On the second issue, the Appellant submitted that the learned magistrate failed to properly evaluate the burden of proof. The Appellant argued that the burden of proof rested upon the Claimant and never shifted. Consequently, where a claimant fails to discharge that burden, the claim must fail. The Appellant submitted that neither the Claimant nor the investigating police officer testified before the trial court. 4. The Appellant further submitted that the learned magistrate erred in admitting and relying upon the Police Abstract without calling its maker to testify. The Appellant argued that the maker of a document ought to be called as a witness and subjected to cross-examination before the document can properly be relied upon by the court. 5. The Appellant also contended that the learned magistrate erred in apportioning liability solely on the basis that the Appellant’s vehicle struck the rear of the Respondent’s vehicle. While conceding that a rear-end collision may give rise to an inference of negligence on the part of the following driver, the Appellant submitted that such an inference is not conclusive and must be considered in light of the particular circumstances of each case. 6. The Appellant maintained that the mere occurrence of a rear-end collision does not, by itself, establish liability. The circumstances under which the collision occurred must be carefully examined. The Appellant submitted that, in the present case, the only evidence before the court from a person who was present at the scene was his own testimony, which, according to the trial court, remained uncontroverted. He stated that his evidence demonstrated that he was not responsible for causing the accident and that the Claimant was wholly to blame. 7. The Appellant further submitted that, in the absence of any evidence contradicting his testimony and in the absence of any witness capable of speaking to the circumstances of the collision, the learned magistrate had no proper basis upon which to find him partially liable for the accident. 8. The Appellant also faulted the learned magistrate for failing to attach appropriate weight to the Claimant’s failure to call material witnesses, particularly the driver of the Claimant’s vehicle on the material day. According to the Appellant, the persons who testified were not eyewitnesses to the accident and were therefore incapable of shedding light on the circumstances under which the collision occurred. 9. On the basis of the foregoing submissions, the Appellant prayed that this court allows the appeal, sets aside the judgment and decree of the trial court, substitutes the same with an order dismissing the claim against the Appellant, and awards the costs of both the trial and the appeal to the Appellant. ## Respondent’s Submissions 1. On the first ground, the Respondent addressed the duty of this court as an appellate court. The Respondent relied on Section 38(1) of the Small Claims Court Act and various judicial authorities to submit that this court ought not to interfere with the decision of the Small Claims Court unless the findings made are so perverse that no reasonable tribunal, properly directing itself on the law and the evidence, would have arrived at such a conclusion. The Respondent further submitted that this court, being the final appellate court in matters arising from the Small Claims Court, is restricted to determining questions of law and not questions of fact. It was therefore contended that the issues raised by the Appellant in this appeal relate to matters of fact rather than law. 2. In support of that proposition, the Respondent relied on Bashir Haji Abdullahi v Adan Mohamed Nooru & 3 Others (2014) KECA 621 (KLR), submitting that where an appeal raises purely factual issues, such an appeal ought not to be entertained. 3. The Respondent further submitted that the Appellant had failed to demonstrate that the findings of the learned Adjudicator were based on no evidence or that the trial court misapprehended the evidence placed before it. 4. On the second ground, namely whether the learned magistrate erred in apportioning liability at 50% against the Appellant and/or failed to consider the Appellant’s evidence, the Respondent submitted that the issue raised is one of fact requiring judicial inquiry. The Respondent contended that the learned magistrate properly addressed herself on the evidence and correctly observed in her judgment that: “The Respondent adduced evidence demonstrating that his motor vehicle was rammed from the rear by the Appellant’s vehicle, thereby establishing a prima facie case of negligence on the part of the Appellant.” 5. The Respondent further submitted that, at paragraph 4 of the Appellant’s witness statement appearing at page 64 of the Record of Appeal, the Appellant expressly admitted the occurrence of the accident when he stated: “I was driving immediately behind the claimant’s motor vehicle when he came to an abrupt stop after the first accident. I attempted to brake to avoid hitting the claimant’s vehicle but was only partly successful as I slightly grazed the rear of its vehicle and damaged an insignificant portion of what the claimant alleges was damaged.” 6. The Respondent also submitted that the Appellant failed to comply with Regulation 50, paragraph 12 of the Highway Code, which requires motorists to maintain a safe distance from the vehicle ahead in order to avoid collisions in the event that the leading vehicle brakes suddenly. 7. The Respondent further submitted that, pursuant to Sections 107, 108 and 109 of the Evidence Act, sufficient documentary evidence was produced before the trial court to establish both the occurrence of the accident and the Appellant’s liability. Such evidence included a Police Abstract confirming the occurrence of the accident, its reporting at Ruiru Police Station, the motor vehicles involved, and the respective insurance companies. 8. The Respondent also relied on the Motor Accident Report Form produced by the Appellant at pages 16 and 17 of the Record of Appeal, wherein the Appellant stated as follows: “I was going from Industrial Area to Thika for personal errands along Thika Road. When at the Githurai overpass the vehicle in front of mine instantly braked and I slowed down suddenly and my car was hit from behind and it hit the stationary vehicle.” 9. The Respondent further relied on the assessment report, which corroborated the damage sustained on both the rear and front sections of the Respondent’s motor vehicle. The report was accompanied by photographs taken during the assessment, which confirmed the nature and extent of the damage. 10. The Respondent submitted that although the driver of the Respondent’s motor vehicle did not attend court to testify, the evidence tendered by CW1 consistently and corroboratively established both the occurrence of the accident and the negligence of the Appellant. 11. The Respondent further submitted that while a Police Abstract is not conclusive proof of liability, it constitutes relevant corroborative evidence, particularly where it is supported by other evidence on record. 12. It was further submitted that the nature and location of the damage depicted in the photographs and assessment report were materially consistent with the manner in which the accident was described in the Motor Accident Report Form. According to the Respondent, the documentary evidence on record sufficiently demonstrated negligence on the part of the Appellant. 13. The Respondent also submitted that the Appellant did not object to the production of the said documents during the trial, and that the documents were therefore properly admitted into evidence. 14. The Respondent maintained that the occurrence of the accident was not in dispute, having been expressly admitted by the Appellant. Further, in his response to the claim, the Appellant did not attribute any negligence to the Respondent. The Respondent therefore contended that the learned magistrate properly evaluated the evidence on record, exercised due caution, and correctly apportioned liability at 50% against the Appellant. 15. On the issue of the admissibility and reliance upon the Police Abstract, the Respondent submitted that the document was produced through CW1, Ms. Vivian Kibathi, the legal representative of APA Insurance Limited, under the doctrine of subrogation. The Respondent argued that the Police Abstract was admitted without objection from the Appellant and that it is settled law that where documentary evidence is produced without objection, a party cannot subsequently challenge either its admissibility or its contents on appeal. In support of this position, the Respondent relied on Kenneth Nyaga Mwige v Austin Kiguta & 2 Others (2015) KECA (KLR). 16. On the basis of the foregoing submissions, the Respondent prayed that the appeal be dismissed with costs to the Respondent. # ISSUES FOR DETERMINATION 1. Having considered the Memorandum of Appeal, the Record of Appeal, the Judgment of the Small Claims Court, and the Submissions by both parties, this court finds that the sole issue falling for determination is: ## (i) Whether the grounds raised in the Memorandum of Appeal constitute matters of law capable of invoking this court's appellate jurisdiction under Section 38(1) of the Small Claims Court Act. 1. The determination of this issue is dispositive of the entire appeal because if the grounds advanced are found to be matters of fact rather than matters of law, then this court would lack jurisdiction to entertain the appeal. # ANALYSIS OF THE ISSUE FOR DETERMINATION 1. At the outset, it is necessary to restate the jurisdiction of this court in appeals arising from the Small Claims Court. Section 38(1) of the Small Claims Court Act provides as follows:- ***“A person aggrieved by the decision or order of the court may appeal to the High Court on matters of law.”*** 1. The wording of the above provision is clear and unambiguous. Parliament deliberately restricted appeals from the Small Claims Court to matters of law only. Consequently, unlike an ordinary first appeal from a subordinate court where an appellate court may re-evaluate evidence and arrive at its own conclusions, the jurisdiction of this court in appeals emanating from the Small Claims Court is confined strictly to determining questions of law.Indeed, this court has been vested with jurisdiction to hear appeals arising from the Small Claims Court. However, that jurisdiction must be exercised judiciously and within the confines established by statute so as not to offend the provisions of Section 38(1) of the Small Claims Court Act. The court must therefore resist the temptation to re-open factual disputes determined by the trial court under the guise of determining an appeal on a point of law. 2. The distinction between a point of law and a point of fact has long been settled. In ***M'Riungu & Others v Republic* [1982-88] 1 KAR 360**, a decision subsequently adopted by the Court of Appeal in ***Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 Others* [2014] eKLR, Chesoni, AJA** stated: **“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.”* 1. The Court of Appeal in *Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 Others* [2014] eKLR further observed that an appellate court restricted to points of law may only interfere where there is no evidence at all to support the findings made by the trial court, where the court acted on a misapprehension of the evidence, or where no reasonable tribunal properly directing itself could have arrived at such a conclusion. In such circumstances, the issue ceases to be one of fact and becomes an error of law. 2. A point of law generally concerns the interpretation of a statute, the application of legal principles, jurisdiction, admissibility of evidence, procedural fairness, or whether the correct legal test was applied by the trial court. 3. Conversely, a point of fact concerns the credibility of witnesses, the weight to be attached to evidence, the sufficiency of evidence, apportionment of liability, and findings reached after evaluation of oral and documentary evidence. 4. Guided by the foregoing principles, this court has examined the grounds of appeal to determine whether they raise any pure question of law. 5. The first ground faults the learned Adjudicator for apportioning liability at 50% against the Appellant despite allegedly finding that the Appellant's evidence was uncontroverted. Determining that complaint would require this court to examine the evidence tendered before the Small Claims Court, ascertain whether the evidence was indeed uncontroverted, and determine whether the learned Adjudicator ought to have reached a different conclusion on liability. Such an inquiry necessarily involves a re-evaluation of evidence and reassessment of factual findings. It is therefore a question of fact and not law. 6. The second ground challenges the learned Adjudicator's reliance on the Police Abstract and contends that the maker thereof was not called as a witness. Although framed as a legal complaint, the substance of the grievance is that the trial court attached undue weight to the Police Abstract and other documentary evidence in arriving at its findings on liability. The Appellant is effectively inviting this court to reassess the evidentiary value of the documents produced before the trial court and to arrive at a different factual conclusion. That exercise falls within the realm of factual determination and not a point of law. 7. The third ground asserts that the Claimant failed to prove its case on a balance of probabilities. Whether a party has discharged the burden of proof is a matter that can only be determined upon evaluation of the evidence placed before the court. For this court to determine that ground, it would be required to revisit the evidence and assess whether it was sufficient to establish liability. Such an exercise is a factual inquiry and falls outside the jurisdiction donated by Section 38(1) of the Act. 8. The fourth ground complains that the learned Adjudicator failed to properly consider the Appellant's testimony and ought to have found that the Claimant's driver was wholly responsible for the accident. Once again, the Appellant is inviting this court to re-evaluate the evidence, assess the credibility and weight of the testimony adduced, and substitute the factual findings of the Small Claims Court with its own. Such an undertaking is expressly prohibited by Section 38(1) of the Small Claims Court Act. 9. Having carefully considered all the grounds advanced by the Appellant, this court finds that none raises a pure question of law. The Appellant does not challenge the interpretation of any statutory provision, the jurisdiction of the Small Claims Court, the application of an incorrect legal principle, or any procedural irregularity amounting to an error of law. Rather, the Appellant seeks a re-evaluation of the evidence on record and a reconsideration of the findings on liability reached by the learned Adjudicator. 10. In essence, the Appellant invites this court to sit as a first appellate court and undertake a fresh assessment of the evidence. That invitation cannot be accepted. To do so would be to expand the jurisdiction conferred by Parliament and convert an appeal restricted to points of law into a rehearing on facts contrary to the express provisions of Section 38(1) of the Small Claims Court Act. 11. Accordingly, I find that the grounds advanced by the Appellant raise matters of fact and not matters of law. Consequently, the appeal does not fall within the appellate jurisdiction conferred upon this court under Section 38(1) of the Small Claims Court Act and is therefore devoid of merit. # DISPOSITION Accordingly, 1. The Appeal lacks merit and is hereby dismissed. 2. The Judgment and Decree of the Small Claims Court in Thika Small Claims Court Claim No. E552 of 2024, delivered on 3rd July 2025, are hereby upheld. 3. The Respondent shall have the costs of this Appeal. It is so ordered. SIGNED BY/FOR: **□ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ABDI M. HASSAN** Thika High Court High Court Div Date: 2026-07-23 18:40:16