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Mwangi v Owino (Civil Appeal E238 of 2025) [2026] KEHC 8946 (KLR) (Civ) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 8946 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E238 of 2025 NM Orina, J June 25, 2026 Between Braico Brian Mwangi Appellant and Jacjohn Owino Respondent (Being an Appeal from the Judgment and Decree of Hon. Wamae E.M. Muindi (RM/Adjudicator) in Nairobi (Milimani) Small Claims Commercial Case No. E4724 of 2024 delivered on 13 February 2025) Judgment Background 1.The claim before the trial court related to a road traffic accident involving motor vehicle registration number KCH707U and motor vehicle registration number KCN388R belonging to the Respondent and the Appellant, respectively. Via amended statement of claim dated 14 October 2024, the Respondent alleged that on 18 September 2022 while driving along Mombasa Road opposite Capital centre, the Appellant’s motor vehicle hit and extensively damaged the rear of his motor vehicle. He blamed the Appellant for the accident and sought judgment for the sum of Kshs. 608,243.00 being sums he spent repairing his motor vehicle together with costs of the claim. 2.The Appellant denied liability before the trial court and blamed the Respondent for the accident contending that the same was occasioned by the Claimant’s blatant disregard for road safety rules coupled with wanton recklessness and inability to drive and/or control motor vehicle registration number KCH707U. The Appellant also disputed the alleged loss and damage amounting to Kshs. 608,243.00. 3.In a judgment dated 13 February 2025, the trial court found the Appellant fully liable for the accident holding that, “in rear-end collisions, liability generally falls on the driver of the following vehicle, the Respondent is expected to maintain a safe distance.” The court awarded the Respondent the sum of Kshs. 608,243.00 for special damages and costs assessed at Kshs. 65,000.00 The Appeal 4.Aggrieved by the trial court’s findings, the Appellant preferred this appeal on the following grounds:a.The Honourable Magistrate awarded the Respondent special damages of Kshs. 608,243.00 even though the same was not pleaded and proved by the Respondent;b.The Honourable Magistrate made her decision contrary to the evidence produced before her which in her own words did not demonstrate fault, contributory negligence or the sequence of events leading to the accident;c.The Respondent failed to discharge the legal burden placed on him yet the Appellant was found 100% liable;d.The Adjudicator made her decision contrary to code 6 (2) of the Small Claims Court Code of Conduct for Adjudicators by conferring benefit to the Respondent merely because his motor vehicle was hit from the rear end;e.The Honourable Adjudicator awarded costs to the Respondent contrary to Section 33(4) of the Small Claims Court Act which is couched in mandatory terms. 5.The Appellant filed submissions in support of the Appeal dated 22 June 2025 where he identified one issue for resolution, being: whether this court should set aside the decision of the trial court in its entirety. He advances two main arguments in this regard touching on whether the decision of the trial court was made in consonance with the evidence produced by the Respondent and whether special damages awarded to the Respondent was pleaded and proved. 6.On the question of evidence presented, the Appellant submits that the trial court made a finding that the evidence before her had not demonstrated fault, contributory negligence or the sequence of events leading to the accident. Consequently, the Appellant argues, the trial court ought to have dismissed the claim. The Appellant submits that the trial court committed an error by finding that the Respondent had not discharged the burden of proof yet proceeded to enter judgment in his favour as against the Appellant. Further, the Appellant avers that the trial court reached a questionable conclusion that the Appellant rear-ended the Respondent’s motor vehicle yet the court found that there was nothing tabled before the court to explain the sequence of events leading to the accident. 7.On the special damages awarded by the trial court, the Appellant submits that the trial court awarded special damages of Kshs. 608,243.00 despite the Respondent failing to plead and prove them strictly contrary to the well-established legal principle that special damages must be specifically pleaded and strictly proven. In this regard the Appellant places reliance on the case of Capital Fish Kenya Limited v. Kenya Power & Lighting Co. Ltd [2016] eKLR. 8.It is the Appellant’s case that the evidence produced in support of the expenditure by the Respondent in repairing the car amounts to Kshs. 208,356.00. The Appellant argues that these are the only special damages that were pleaded with specificity. 9.The Appellant also contests the award of costs and argues that the same is contrary to Section 33(4) of the Small Claims Court Act which shields parties from the burden of costs, except in clearly delineated circumstances The Respondent’s Case 10.In his written submissions dated 12 June 2025, the Respondent also identifies one issue for determination, being: whether this court should set aside the judgment of the trial court. 11.The Respondent submits that this court, on appeal, lacks jurisdiction to determine whether the special damages awarded were correctly assessed as that is a matter of fact and it contravenes Section 38 of the Small Claims Court Act. Nevertheless, the Respondent submits that he specifically pleaded and proved that he spent Kshs. 608,243.00 to repair his motor vehicle. In this regard he refers to the amended statement of claim dated 14 October 2024. He further avers that this amount was proved through the bundle of documents dated 19 September 2024, further bundle of documents dated 7 October 2024 and a further bundle of documents dated 26 November 2024, all containing copies of the receipts and invoices. 12.The Respondent further submits that the trial court was not in error in finding the Appellant 100% liable for causing the accident in question. Besides, the Respondent argues, this is a question of fact which should not be entertained by this court. The Respondent, however, contends that it is a principle of law that a driver who hits another vehicle from behind is generally presumed to be at fault unless there is sufficient evidence to rebut this presumption. Reliance is placed on the Court of Appeal decision in Orioki v Kevian Kenya Limited [2025] KECA 780 (KLR). 13.It is the Respondent’s case that the Appellant failed to present any evidence or to call any witnesses to controvert the testimony of the Respondent and his witness. The Respondent avers that the Appellant’s pleadings remained merely allegations as they were not backed up by evidence. The Respondent relies on the holding in Mohammed & Another v. Haidara [1972] E.A. 166 and in Robert Ngande Kathathi v. Francis Kivuva Kitonde [2020] eKLR. It is the Respondent’s contention that the Appellant cannot fault the trial court for finding him 100% liable for causing the accident when he did not substantiate these allegations. 14.Finally, on whether the trial court judgment was made contrary to Code 6 (2) of the Small Claims Court Code of Conduct for Adjudicators by conferring benefit to the Respondent merely because his vehicle was hit from the rear end, the Respondent avers that no bias or prejudice against the Appellant has been demonstrated. Further, the Respondent avers that the trial court did not err in awarding him costs as he was the successful party. Analysis and Determination 15.There is one main issue that has been identified by the parties for resolution, being: whether this court should set aside the trial court judgment. Arising from that issue, the court is called upon to determine whether liability against the Appellant was properly established, and if so, whether the Respondent specifically pleaded and proved special damages. Preliminarily, however, this court must satisfy itself that the appeal complies with Section 38(1) of the Small Claims Court Act being that the appeal before the court is on matters of law. 16.Section 38(1) of the Small Claims Court Act provides as follows:38.Appeals(1)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. 17.An appeal on matters of law or questions of law is one which seeks a correction of the trial court’s application of the law. The role of the appellate court is to satisfy itself that the trial court did not err in applying the law to the facts as presented. In essence, the appellate court gives deference to the trial court on findings of fact and can only interfere if it is apparent that the trial court misdirected itself in drawing conclusions from those findings of fact. Chesoni AJA articulated the role of such an appellate court as follows in M’riungu and Others -vs- R [1982-88] 1 KAR 360 inthis regard:… 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. 18.In the present case, the Appellant has contested the trial court’s findings of liability for the accident in question. The Appellant has also impugned the trial court’s findings in regard to special damages arguing that the same were not pleaded and strictly proved. I am satisfied that these issues go into the conclusions that were drawn by the trial court on the facts presented before the court and hence they are matters of law. 19.The first sub-issue is whether liability of the Appellant was properly determined by the trial court. The contention in this issue stems from the trial court’s findings that the Respondent (Claimant then) had not provided any details or clarification regarding how the accident occurred. The trial court further found that despite presenting witnesses who testified and relying on police reports as well as assessment reports, the evidence presented by the Claimant then did not clearly demonstrate fault, contributory negligence or the sequence of events leading to the accident. The trial court, nevertheless, found the Appellant (Respondent then) wholly liable on the basis of the nature of the accident being a rear-ended collision and the fact of the Appellant having been the following vehicle. 20.At trial, the Respondent testified that police had visited the scene of the accident and conducted investigations before the motor vehicle was towed away. He also relied on a copy of a police abstract issued at Industrial Area Police Station on 19 September 2022. An Accident Assessment Report prepared by Regent Automobile Valuers & Assessors Limited dated 3 October 2022 also formed part of his evidence showing that his motor vehicle had been rear-ended. The Respondent also called a witness – a police officer attached to Industrial Area Police Station - who testified on his behalf as CW2. CW2 testified that he was not the investigating officer of the accident and he couldn’t provide evidence of the circumstances of the accident. He also testified that the file was pending investigations as per the police abstract. 21.The Appellant did not call any witnesses. 22.I am satisfied that the trial court reached the correct conclusion that the circumstances of the accident could not be ascertained on the basis of the evidence that was before the court. Further, the trial court arrived at a correct determination that even though the evidence did not ascertain the circumstances of the accident, the Appellant was, nevertheless, wholly liable on the basis of the common law principle that a driver that rear-ends a motor vehicle in front of them is wholly liable unless there is sufficient evidence to rebut this presumption.1 Despite a lack of clarity on the circumstances of the accident, evidence that the Respondent’s car was rear-ended by the Appellant’s car was not controverted. The Appellant did not call any witnesses or present any evidence to rebut the presumption that he was to blame for the accident. It is this court’s finding that there is no contradiction in the analysis of the trial court of the evidence presented and the conclusions drawn from that evidence that the Appellant was liable.1The Court of Appeal in Orioki v. Kevian Kenya Limited [2025] KECA 780 (KLR) held as follows in this regard:The trial court found that the appellant was liable for the rear- end collision, as the appellant admitted to hitting the respondent’s vehicle. Under common law, a driver who hits another vehicle from behind is generally presumed to be at fault, unless there is sufficient evidence to rebut this presumption. (See: Njuguna v Chogo [1985] KLR 452). In this case, the appellant admitted that he collided with the respondent’s vehicle from behind. This fact alone placed the burden on the appellant to prove that the collision was not due to his negligence. 23.The next question is whether the Respondent specifically pleaded and strictly proved the special damages. In the amended statement of claim dated 14 October 2024, the Respondent sought judgment against the Appellant for the sum of Kshs. 608,243.00 in respect of expenses incurred on repairs to his motor vehicle, towing fees, and accident assessors’ fees. In support thereof, the Respondent relied on several payment receipts including ETR receipts and MPESA messages which were part of his documents. The total amount ascertainable from the receipts is the sum of Kshs. 202,356.00. It is my finding that the Respondent did not strictly prove the special damages sought in the claim for the sum of Kshs. 608,243.00 but rather was able to prove the sum of Kshs. 202,356.00. The conclusion of the trial court on this evidential aspect was, therefore, in error and the same is hereby reversed. 24.On costs, the Small Claims Court has jurisdiction to award costs to a successful party. However, in award of such costs, the court should never lose sight of the reason for the establishment of the court.2 This court is intended to be an affordable avenue for resolution of disputes and even though the winning party is entitled to reap fruits of the success, awarded costs should be minimal to cover disbursements as provided for under Section 33(4). Considering the outcome of this appeal, the costs awarded by the trial court are hereby reduced to a sum of Kshs. 40,000.00. Each party shall bear its own costs of this appeal.2See, Ochieng v Customs Aluminium East Africa Ltd [2026] KEHC 8165 (KLR) (para. 25) 25.For the foregoing reasons, I hereby make the following orders:a.The trial court’s findings on liability on the part of the Appellant are hereby upheld;b.The award of the sum of Kshs. 608,243.00 for special damages is hereby set aside and substituted with an award of Kshs. 202,356.00;c.The Appellant shall pay costs of the trial court assessed at Kshs. 40,000.00;d.Parties shall bear their own costs of this appeal. 26.Orders accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 25TH DAY OF JUNE, 2026.NABIL M. ORINAJUDGEJudgment virtually delivered virtually in the presence of:Mr. Odiyo for the AppellantMr. Ayieko for the RespondentHamza – Court Assistant