https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8263

Omete v Alkizim (Civil Appeal E1310 of 2024) [2026] KEHC 8263 (KLR) (Civ) (11 June 2026) (Judgment) Neutral citation: [2026] KEHC 8263 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E1310 of 2024 BW Murunga, J June 11, 2026 Between Bernard Omete Appellant and Muneer Khalid Omar Alkizim Respondent (Being an Appeal from the Judgment and Decree delivered on 6th November 2024 by Hon. Kiongo Kagenyo (MR), Resident Magistrate sitting at the Small Claims Court at Nairobi in SCCC E3250 of 2024) Judgment Background 1.On 27th February 2024, at approximately 19:40 hours along Ojijo Road, Westlands, the Appellant, Bernard Omete, was driving his motor vehicle registration number KDM 466D when motor vehicle registration number KDG 222D, which NTSA records confirmed was registered in the name of the Respondent, Muneer Khalid Omar Alkizim, collided with the Appellant’s vehicle. 2.The collision caused extensive damage to the front bumper, right-hand front mudguard, and the driver’s door of the Appellant’s vehicle. The incident was reported at Parklands Police Station under OB 60/27/2/2024. 3.Following police investigations, the driver of motor vehicle KDG 222D was found culpable for the accident, a finding that was memorialised in a police abstract dated 29th February 2024 issued by the Officer-in-Charge, Parklands Police Station. 4.The Appellant thereafter had his vehicle assessed by Autorec Assessors, repaired at Ashok Leyland Garage, and incurred total costs of Kes. 84,650 comprising assessment fees, spare parts, and labour charges, all evidenced by receipts and invoices placed on the record. 5.The Respondent, upon being served with a demand letter through the Appellant’s advocates, declined to compensate the Appellant. 6.The Appellant consequently filed Claim No. SCCC E3258 of 2024 in the Small Claims Court at Nairobi, seeking judgment against the Respondent in the sum of Kes. 84,650 together with costs and interest from the date of filing. 7.The Respondent filed a response dated 9th August 2024 denying liability in its entirety, disputing that he was the driver at the material time, and in the alternative attributing the accident to the negligence of the Appellant’s driver. 8.The Respondent listed himself as a potential witness but did not call any evidence, oral or documentary, to rebut the Appellant’s case. The matter proceeded under Section 33 of the Small Claims Court Act by way of adoption of filed documents and written submissions. 9.By judgment delivered on 6th November 2024, the learned adjudicator dismissed the claim on the ground that the Appellant had failed to plead the particulars of negligence with sufficient specificity, holding that a blanket allegation of driving carelessly was inadequate to discharge the legal burden. 10.The Appellant was aggrieved by this decision and lodged the present appeal by Memorandum of Appeal filed on 14th November 2024. Appellant’s Submissions 11.The Appellant, through the firm of Gichuki Kimere and Company Advocates, filed written submissions dated 14th October 2025 urging this Court to allow the appeal, set aside the judgment of the trial court, and substitute therefor a judgment in favour of the Appellant as prayed in the Statement of Claim. 12.The Appellant submits that the trial court fundamentally misdirected itself by conflating the requirement that negligence be pleaded with an additional, unsupported requirement that it be pleaded with granular particularity. 13.Reliance is placed on Kenyatta National Hospital v. Dorcas Odongo & another [2021] eKLR, for the proposition that particulars of negligence are not mandatory in law, the essential requirement being only that the allegation of negligence is made in the pleadings. The Appellant further relies on Koech v. Izwof Limited (Civil Appeal E144 of 2024) [2025] KEHC 12536 (KLR), a recent High Court decision on appeal from the Small Claims Court which squarely addressed an identical argument and rejected the contention that failure to enumerate specific particulars of negligence rendered a liquidated claim fatally defective. 14.The Appellant further contends that the allegation of careless driving is itself a recognised particular of negligence. Reference is made to Lydia Ntembi Kairanya & another v. Attorney General [2009] KEHC 1343 (KLR), in which the High Court affirmed that careless driving connotes some degree of negligence. 15.The Appellant argues that when the Statement of Claim and Witness Statement are read together with the Appellant pleading that the Respondent carelessly drove motor vehicle KDG 222D causing it to collide with his vehicle, and identifying in his witness statement the exact point of impact and manner of collision, the Respondent was placed on full notice of the case he had to meet. 16.The Appellant draws attention to the fact that the Respondent did indeed file a detailed response setting out particulars of contributory negligence against the Appellant’s driver, which itself demonstrates that the Respondent understood the nature and substance of the case being made against him and was not prejudiced by any alleged deficiency in the pleading. 17.On liability and quantum, the Appellant urges this Court to hold that the evidence on record, being uncontroverted, establishes liability on a balance of probabilities. The Appellant relies specifically on:a.the police abstract dated 29th February 2024 in which the driver of KDG 222D was found to be at fault;b.the Autorec Assessors’ report dated 2nd March 2024, which confirmed damage to the front right side of the vehicle consistent with the described accident;c.the re-inspection report dated 3rd June 2024 confirming that repairs were completed in accordance with the assessment;d.payment receipts from Quest Car Parts Limited, Henley Auto Spares, and Autorec Assessors evidencing disbursements totalling Kes. 84,650; ande.the NTSA copy of records confirming that vehicle KDG 222D was registered in the Respondent's name at the material time. 18.The Appellant contends that the Respondents failure to adduce any evidence in rebuttal, despite filing a list of witnesses with his name thereon, operates to leave the Appellant’s case unchallenged and proven. The Appellant invokes Article 159(2)(d) of the Constitution of Kenya, which enjoins courts to administer justice without undue regard to procedural technicalities. Respondent’s Submissions 19.The Respondent, through the firm of Karugu Mbugua and Company Advocates, filed written submissions dated 17th February 2026 urging this Court to dismiss the appeal with costs. The Respondent submits that the trial court was correct in holding that the cause of action was founded in the tort of negligence, and that negligence must not only be alleged but pleaded and proved. 20.Reliance is placed on Sections 107, 108, and 109 of the Evidence Act, Cap 80, Laws of Kenya, for the general proposition that he who asserts must prove. The Respondent further cites Eunice Wayua Munyao v. Mutilu Beatrice & 3 others [2017] eKLR, in which the court affirmed that there is no liability without fault and that a plaintiff must prove negligence where the claim is so founded. The Respondent therefore supports the trial court’s conclusion that the Appellant’s bare reference to driving carelessly was insufficient to find a finding of negligence. 21.The Respondent additionally argues that the Appellant’s pleading of negligence was effectively controverted by the response filed on 9th August 2024, in which the Respondent specifically denied being the driver, owner in control, or person in possession of motor vehicle KDG 222D at the material time, denied the occurrence of the accident, denied being present at the intersection of Avocado Lane and Ojijo Road as alleged, and expressly attributed the accident to the negligence of the driver of motor vehicle KDM 466D by setting out detailed particulars of contributory negligence including failure to exercise proper caution at a road intersection, driving at excessive speed, failing to control the vehicle, and failing to observe traffic regulations. 22.The Respondent contends that these specific and traversed denials placed a heightened evidential burden on the Appellant to demonstrate, beyond a general assertion, how and in what respect the Respondent or his driver had been negligent. 23.The Respondent further contends that the Appellant did not address the specific allegation of contributory negligence raised in the response, and that the absence of evidence in rebuttal of the Respondent’s particulars of negligence means that the Respondent’s version cannot be entirely disregarded. 24.The Respondent maintains that the trial court’s decision to dismiss the claim was therefore legally sound and should be upheld. The Respondent urges this Court to exercise restraint in its appellate jurisdiction, noting that under Section 38 of the Small Claims Court Act, the High Court’s jurisdiction on appeal from the Small Claims Court is confined to matters of law only, and that findings of fact made by the adjudicator should not be disturbed on appeal unless it can be demonstrated that the adjudicator applied the wrong legal standard or principle in evaluating the evidence. Issues for Determination 25.Having considered the pleadings, documentary evidence on the record of appeal, and the written submissions of both counsel, this Court identifies the following issues as arising for determination:a.Whether this Court, sitting as an appellate court under Section 38 of the Small Claims Court Act, has jurisdiction to determine this appeal;b.Whether the trial court erred in law by dismissing the Appellant’’s claim on the ground that negligence had not been pleaded with sufficient particularity; andc.Whether the Appellant proved his claim to the required civil standard. Analysis and Determination 26.This Court begins with the threshold question of jurisdiction. The appellate jurisdiction of the High Court over decisions of the Small Claims Court is governed exclusively by Section 38 of the Small Claims Court Act, No. 2 of 2016, which provides that1.A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.2.An appeal from any decision or order referred to in subsection (1) shall be final. 27.The Respondent has invoked this limitation and urges the Court to confine itself accordingly. This Court is in no doubt that its jurisdiction is so confined. However, whether the trial court applied the correct legal standard in assessing whether negligence had been sufficiently pleaded, and whether the legal threshold for proof on a balance of probabilities was correctly applied, are quintessentially questions of law. This Court is therefore properly seized of this matter. 28.This Court turns to the central question of whether the trial court erred in dismissing the claim for want of particularity in the pleading of negligence. The adjudicator held, in the operative passage of his judgment, that the Appellant was duty bound to plead with particularity the specific actions deemed as negligence by the Respondent and that the bare allegation of driving carelessly deprived the court of the factual matrix necessary to infer negligence. 29.The legal question, squarely, is whether in proceedings before the Small Claims Court, a claimant founding his claim in negligence must enumerate specific particulars of that negligence, or whether an allegation of negligence accompanied by a description of the manner of the accident suffices. 30.The law on this point is not settled by a single uncontested line of authority. There exists a divergence of judicial opinion in the High Court. In Ogwari v. Hersi (Civil Appeal 223 of 2022) [2023] KEHC 20111 (KLR), a High Court bench held that the adjudicator had no jurisdiction to proceed on a case founded in negligence that disclosed no particulars thereof, and that negligence must first be pleaded before it can be proved. That decision has been invoked by various adjudicators, including the trial court in the present matter, as authority for a strict pleading requirement even within the informal and access-oriented framework of the Small Claims Court. 31.Against this position stands the decision of the High Court in Kenyatta National Hospital v. Dorcas Odongo & another [2021] eKLR, which took the view that particulars of negligence are not mandatory provided the allegation of negligence is made in the pleadings and the opposing party has notice of the case to be met. That court further reasoned that a party who considers the particulars insufficient has the right to apply for further and better particulars a remedy the Respondent did not pursue in the present case. 32.This Court further notes the resolution of this tension by the High Court in the recent decision of Koech v. Izwof Limited (Civil Appeal E144 of 2024) [2025] KEHC 12536 (KLR), delivered on 3rd September 2025, which arose from facts materially similar to the present appeal. In that case, the appellant had pleaded that the respondent’s driver had negligently and recklessly drove his vehicle causing it to collide with the appellant’s vehicle, without further enumerated particulars. The High Court, per Rutto J, declined to follow Ogwari (supra) and instead adopted the approach in Kenyatta National Hospital (supra), holding that a more pragmatic and less formalistic approach was consistent with the legislative intent of the Small Claims Court Act, which seeks to simplify legal processes for claimants. 33.The court specifically held that in a liquidated claim, it was not necessary to particularise the allegation of negligence, and that the trial court had erred in taking up the point of deficiency in pleading on behalf of one of the litigants when no such objection had been raised by the opposing party. 34.This Court finds the reasoning in Koech v. Izwof Limited (supra) persuasive and adopts it. The Small Claims Court Act was enacted to create a simplified, expeditious, and accessible forum for the resolution of low-value disputes. Section 34 of the Act expressly relaxes the strict rules of evidence applicable in other civil proceedings. 35.It would be incongruous, and contrary to the evident legislative design of the statute, to impose upon claimants in that court the same exacting pleading standards that apply in the High Court or the Magistrates’ Court under the Civil Procedure Rules. The position that particulars of negligence are not mandatory so long as the allegation of negligence is made and the opposing party has reasonable notice of the case it has to meet is consonant with the spirit of the Act and with the overarching constitutional mandate in Article 159(2)(d) to administer justice without undue regard to procedural technicalities. The trial court therefore misdirected itself in law by holding the claim defective on this basis. 36.There is a further reason why the trial court’s reasoning on this issue cannot stand. The Respondent’s response, filed on 9th August 2024, itself contained detailed particulars of negligence attributed in the alternative to the Appellant’s driver. These particulars included failure to exercise caution at a road intersection, excessive speed, failure to control the vehicle, and breach of traffic regulations. The Respondent’s filing of such a response is, in itself, conclusive evidence that he had full and adequate notice of the nature of the case being made against him. He was not in any way ambushed or prejudiced by the form of the Appellant’s pleading. 37.In Kenyatta National Hospital v. Dorcas Odongo & another (supra), the court noted that a party who considers the particulars furnished to be insufficient is entitled to apply for further and better particulars. The Respondent made no such application. Having engaged with the substance of the claim and filed a substantive response, the Respondent cannot now be heard to say that the claim was so bereft of particulars as to be fatally defective. 38.This Court further holds that the allegation of careless driving is not, as the trial court treated it, a mere label devoid of legal content. The phrase imports a well-recognised cause of action. In Lydia Ntembi Kairanya & another v. Attorney General [2009] KEHC 1343 (KLR), the High Court affirmed that careless driving connotes some degree of negligence. This position is reinforced by the provisions of the Traffic Act, Cap 403, Laws of Kenya, which creates a statutory offence of careless driving and defines it in terms that squarely overlap with the common law elements of negligence. When the Appellant alleged that the Respondent carelessly drove motor vehicle KDG 222D causing it to collide with his vehicle, he was asserting a failure to exercise the standard of care expected of a reasonable driver, the very foundation of the tort of negligence in motor accident cases. 39.Having determined that the trial court erred in law on the pleading question, this Court turns to assess the substantive evidence on the record in order to determine whether the Appellant proved his claim to the required civil standard. The standard applicable in civil proceedings is proof on a balance of probabilities. The question is therefore whether, on the evidence before the trial court, it was more probable than not that the Respondent or his driver was negligent and that this negligence caused the Appellant's loss. 40.The Appellant’s evidence comprised the following uncontroverted documents: first, the police abstract dated 29th February 2024, issued under the hand of the Officer-in-Charge, Parklands Police Station, recording OB 60/27/2/2024, in which the driver of motor vehicle KDG 222D is identified as the party responsible for the accident. 41.A police abstract, while not conclusive, is a document of significant probative weight in road traffic accident claims. The documentary evidence adduced without contradiction ordinarily tilts the balance of probabilities in the proponent’s favour. The abstract in this case had not been challenged, impugned, or sought to be set aside by the Respondent at any stage of the proceedings. 42.Second, the Appellant produced the assessment report by Autorec Assessors dated 2nd March 2024, prepared by a qualified motor loss assessor, J.M. Gichohi. The report records that the vehicle was inspected at Ashok Leyland Garage following the accident and identifies damage to the front bumper, right-hand front mudguard, and right-hand front door, a damage pattern entirely consistent with the Appellant’s description of the collision as occurring at the right front side of his vehicle. 43.The repair estimate contained in the report, amounting to Kes. 66,120 as a net total, inclusive of parts, labour, painting, and miscellaneous expenses, was corroborated by actual receipts of expenditure placed on the record: a receipt from Quest Car Parts Limited for Kes. 65,000, two cash sale receipts from Henley Auto Spares for Kes. 6,400 and Kes. 5,200 respectively, and assessment fees receipts of Kes. 5,000 and Kes. 2,500. A re-inspection report dated 3rd June 2024 confirmed that the repairs had been completed in accordance with the earlier assessment. 44.Third, the Appellant produced a copy of the NTSA Motor Vehicle Copy of Records, reference number MCR-679TEO9L, generated on 2nd May 2024, confirming that motor vehicle KDG 222D was at all material times registered in the name of the Respondent, Muneer Khalid Omar Alkizim.. The registered owner of a motor vehicle is presumed to be liable for its negligent operation unless he demonstrates that it was being driven by a person who was neither his agent, employee, nor a person to whom he had entrusted the vehicle: see Muchiri v. Nyambura [1984] KLR 363; Francis Wambua Musyoka v. Robert Mutua Kioko & another [2016] eKLR. 45.The Respondent, in his response, denied being the driver or person in control of the vehicle at the material time, but offered no evidence to establish who else was in possession or control of the vehicle on the date of the accident, or to rebut the presumption of ownership liability. 46.Further, the Respondent’s deliberate election not to testify or adduce any documentary rebuttal cannot operate to his advantage. The burden of proof in these proceedings lay with the Appellant, and on the evidence before the court, that burden has been discharged. 47.On quantum, the Appellant has pleaded and proved special damages in the sum of Kes. 84,650. It is trite law that special damages must be specifically pleaded and strictly proved. The Appellant has done so with receipts and assessor reports corroborating the expenditure, the total of which was confirmed by the re-inspection report. The Court is satisfied that Kes. 84,650 represents a reasonable and proven sum for the costs of repairing the vehicle following the accident. Disposition 48.For the reasons set out above, this Court finds that the trial court erred in law by dismissing the Appellant’s claim on the ground that negligence had not been pleaded with sufficient particularity. Judgment is hereby entered in favour of the Appellant, Bernard Omete, against the Respondent, Muneer Khalid Omar Alkizim as follows:a.The Respondent shall pay to the Appellant the sum of Kes. 84,650 being the proven costs of repair of motor vehicle registration number KDM 466D.b.The Respondent shall pay interest on the said sum at the court’s rate from the date of the lower court judgment until payment in full.c.The costs of this Appeal are awarded to the Appellant DATED AND DELIVERED VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF JUNE, 2026.BENARD WAFULA MURUNGAJUDGE OF THE HIGH COURTDelivered on virtual platform in the presence ofIreri h/b for Nderitu instructed by Gichuki Kamere for the AppellantMbugua instructed by Karugu Mbugua for the RespondentKevin Babu - Court Assistant