https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12234

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CIVIL APPEAL NO. E271 OF 2024** **MAKALE BENSON CHESI………………..…………………………….1ST APPELLANT** **BETTY KANYIRI…………………………..…………………………….2ND APPELLANT** **VERSUS** **MUTIE JOHN KILONZO………………………………………….………RESPONDENT** **JUDGMENT** 1. The Respondent instituted proceedings before the trial court alleging that, on the material day, he was lawfully walking as a pedestrian off the carriageway along Machakos–Nairobi Road when the Appellant, by himself and/or through his driver, servant or agent, so negligently drove, managed and controlled motor vehicle registration number KAS 037U that he lost control of the vehicle, veered off the road and knocked the Respondent down, thereby occasioning him severe bodily injuries. 2. The Respondent attributed the accident to the Appellant's negligence, the particulars whereof were pleaded in the plaint, together with the injuries sustained. 3. He therefore sought general damages, special damages, costs of the suit and interest. 4. The Appellant filed a statement of defence denying the Respondent's claim and contended that the accident was solely caused and/or substantially contributed to by the Respondent's own negligence. 5. The matter proceeded to full hearing by way of oral evidence. 6. Upon evaluating the evidence, the trial court found the Appellant predominantly liable for the accident and apportioned liability at the ratio of 90:10 in favour of the Respondent. 7. In arriving at that finding, the trial court held that although the Appellant bore the greater responsibility, the Respondent also owed a duty of care to keep a proper lookout for approaching motor vehicles. 8. The court relied on the decision of the Court in Isabelle Wanjiru Karangu v Washington Malele, Civil Appeal No. 50 of 1981 (1983) KLR 142, and Patrick Mutie Kamau & Another v Judy Wambui Ndurumo. 9. On quantum, the trial court found that the medical evidence established that the Respondent sustained soft tissue injuries comprising blunt injuries to the mouth, chest, hip, wrist and lip, laceration wounds, as well as the loss of three teeth. 10. The court consequently awarded Kshs. 320,000/= as general damages for pain, suffering and loss of amenities, Kshs. 45,000/= as future medical expenses, being the estimated cost of replacing the three lost teeth at a public health institution, and Kshs. 7,600/= as special damages, together with costs of the suit. 11. Aggrieved by that decision, the Appellant preferred the present appeal on the following grounds: * 1. That the learned trial adjudicator erred in law and in fact in her assessment of the evidence on liability and in apportioning liability at the ratio of 90:10 in favour of the Respondent. 2. That the learned trial adjudicator erred in law and in fact by failing to accept the Appellant's version of events as presented in the evidence, thereby arriving at an erroneous finding on liability. 3. That the learned trial adjudicator erred in law and in fact by failing to consider the Appellant's submissions on liability, consequently arriving at an erroneous decision. 12. The appeal arises from the Small Claims Court. Accordingly, by virtue of Section 38(1) of the Small Claims Court Act, this Court's appellate jurisdiction is confined to matters of law. The section provides: *"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."* 1. The Appellant submitted that in civil proceedings the applicable standard of proof is on a balance of probabilities and that the burden of proof rests upon the party who alleges. 1. Reliance was placed on Sections 107, 108 and 109 of the Evidence Act, which place the burden of proving any particular fact upon the party asserting its existence unless otherwise provided by law. 2. The Appellant placed particular emphasis on Section 107, which provides that: *"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 those facts."* 1. The Appellant argued that the trial court disregarded these statutory provisions by finding that the Respondent had discharged the requisite burden of proof and by entering judgment on liability at the ratio of 90:10. 2. The Appellant further submitted that where a trial court ignores material evidence, thereby arriving at a decision that is perverse or so unreasonable that no properly directed tribunal could have reached it, the High Court is entitled to intervene notwithstanding that the appeal originates from the Small Claims Court. 3. In support of that proposition, the Appellant cited the case of Ojwang & Another v Kagunya [2025] KEHC 6153 (KLR), wherein the court held that appeals from the Small Claims Court are confined to matters of law and that the High Court's role is analogous to that of the Court of Appeal exercising second appellate jurisdiction. 4. The Appellant also relied on the case of Kenya Breweries Ltd v Godfrey Odoyo [2010] eKLR, where the Court of Appeal stated that a second appellate court is confined to matters of law unless the courts below considered matters they ought not to have considered, failed to consider relevant matters, or arrived at a perverse decision. 5. On the merits of the appeal, the Appellant submitted that the learned adjudicator fundamentally erred by failing to properly evaluate and accord due weight to the evidence of the Appellant's driver, the investigating police officer and the documentary evidence, particularly the police abstract and the Occurrence Book (OB) extract, which allegedly attributed blame to the Respondent. 6. It was submitted that the testimony of the investigating officer and that of the Appellant's driver was consistent, plausible and remained unshaken on material particulars. 7. According to the Appellant, this evidence was not displaced by any cogent rebuttal. 8. The Appellant further contended that the Respondent's evidence was riddled with inconsistencies. 9. The Appellant submitted that whereas the Respondent testified that he was walking off the road when he was hit, both the Respondent's police witness (CW3) and the Appellant's witnesses testified that the Respondent was attempting to cross the road at the time of the accident. 10. The Appellant submitted that the trial court unjustifiably disregarded the provisions of Section 107 of the Evidence Act. 11. The Appellant argued that a witness ought not to be discredited unless his or her testimony is so inconsistent or unreliable as to be wholly unworthy of belief. 12. The Appellant further argued that the trial court completely disregarded the evidence of RW1 and RW2 while placing undue reliance upon the evidence of CW1 and CW2. 13. The Appellant submitted that the evidence of CW2, the alleged eyewitness, was not free from doubt. 14. The Appellant submitted that her assertion that the Respondent was walking off the road was not corroborated by independent evidence such as photographs, a sketch map or expert evidence. 15. On the other hand, the Appellant maintained that both the Appellant's witnesses and the Respondent's police witness testified that the Respondent was crossing the road when the accident occurred. 16. The Appellant's investigating officer blamed the Respondent for causing the accident. 17. Because of the aforesaid, and given the conflicting evidence, the Appellant submitted that the trial court ought, at the very least, to have apportioned liability equally at the ratio of 50:50. 18. In support of that submission, the Appellant cited the decision of the court in Hussein Omar Farah v Lento Agencies [2006] eKLR, wherein the Court of Appeal held that where two conflicting versions of an accident exist and neither party establishes fault against the other, liability ought to be shared equally. 19. The Appellant also cited the decision of the court in Mwangi & Another v Oginga [2025] KEHC 7976 (KLR), which emphasised that where evidence is conflicting, and fault cannot be determined with precision, liability should be apportioned. 20. The Appellant therefore submitted that the learned adjudicator failed to properly analyse and evaluate the entirety of the evidence placed before the court. 21. The Appellant argued that the Appellant's evidence remained credible and unrebutted and that the finding holding the Appellant 90% liable was contrary to both the weight of the evidence and established legal principles governing the evaluation of conflicting testimony. 22. Therefore, the Appellant urged this Court to interfere with the trial court's finding on liability by either apportioning liability equally between the parties at the ratio of 50:50 or by finding that the Respondent failed to prove his claim on a balance of probabilities and dismissing the suit with costs. 23. The Respondent opposed the appeal and submitted that although this Court is exercising appellate jurisdiction, it must remain mindful of the principles governing interference with findings of fact by a trial court. 24. The Respondent cited the decision of the court in Selle v Associated Motor Boat Co. Ltd & Others (1968) EA 123, for the proposition that a first appellate court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions. 25. However, in doing so, it must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify and should not interfere merely because it would have reached a different conclusion. 26. The Respondent submitted that his evidence was clear, consistent and remained unshaken throughout cross-examination. 27. He maintained that he was walking off the road on a pedestrian path, was not crossing the road, and was struck only after the Appellant's motor vehicle veered off the road. 28. He submitted that his testimony was never dislodged during cross-examination. 29. The Respondent further submitted that CW2, an eyewitness who observed the accident from a distance of approximately five metres, confirmed that the motor vehicle was being driven at an excessive speed and blamed the driver entirely for the accident. 30. The Respondent also submitted that the police officer confirmed that the accident involved a pedestrian and that neither the police abstract nor the Occurrence Book attributed any blame to the Respondent. 31. It was further submitted that the Appellant's version of events was contradictory. 32. On the one hand, the driver maintained that she was travelling at approximately 40 kilometres per hour, yet, on the other hand, admitted that at such a speed she ought to have been able to avoid the accident. 33. The Respondent challenged the credibility of the Appellant's investigating officer, contending that his evidence appeared fabricated because it contained greater and more particularised details than those provided by the alleged eyewitness. 34. The Respondent cited the case of Ndungu Kimanyi v Republic (1979) KLR 282, where the court held that: *"The witness upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person... a witness who gives inconsistent evidence is not worthy of belief."* 1. The Respondent further submitted that had the additional facts testified to by the investigating officer existed, they would necessarily have been recorded in the Occurrence Book. 2. He therefore argued that the trial court correctly rejected the defence version of events. 3. Finally, the Respondent submitted that, if anything, the trial court ought to have found the Appellant 100% liable, as the evidence demonstrated that the Respondent was off the road, the Appellant's motor vehicle veered off the road, and the accident resulted from excessive speed and failure to control the vehicle. 4. In support of that contention, the Respondent relied on the decision of the court in Mwaka Chije Barisa v Abdul Hakim Abdala & Another [2018] eKLR, where the court held that the mere occurrence of an accident gives rise to an inference of negligence in the absence of a satisfactory explanation. 5. The Respondent submitted that the Appellant failed to provide any plausible explanation to rebut that inference. 6. The Respondent, therefore, prayed that the appeal be dismissed with costs. 7. Having considered the memorandum of appeal, the record of appeal and the parties' respective submissions, the following issues arise for determination: 8. Whether the learned adjudicator erred in law in the evaluation of the evidence and in apportioning liability at the ratio of 90:10 in favour of the Respondent. 9. Whether the finding on liability was supported by the evidence on record or was so unreasonable or perverse as to warrant interference by this Court on a point of law, bearing in mind the limited appellate jurisdiction conferred by Section 38(1) of the Small Claims Court Act. 10. The Appellant has faulted the trial court’s assessment of evidence and consequent apportionment of liability, which to my mind constitutes an issue of law that would properly ground the appeal. 11. I say so, because the failure of a court to consider matters it ought to consider or failure to consider relevant matters are issues of law that may be properly determined as such. 12. The Appellant’s appeal hinges on the position that the adjudicator fundamentally erred by failing to properly evaluate and accord due weight to the evidence of the Appellant's driver, the investigating police officer and the documentary evidence, particularly the police abstract and the Occurrence Book (OB) extract, which allegedly attributed blame to the Respondent. 13. It was submitted that the testimony of the investigating officer and that of the Appellant's driver was consistent, plausible and remained unshaken on material particulars. 14. I have perused the record of appeal, the witness statements by the parties and the record of witness testimony on examination, cross-examination and re-examination together with the decision of the adjudicator. 15. I find that the adjudicator did indeed consider the evidence of the Appellant; the adjudicator properly weighed the evidence of the Appellant vis-à-vis that of the Respondent. 16. The Appellant’s complaint would seem to go to how the adjudicator determined credibility and weight of evidence, which are essentially matters of fact, to which an appellate court would exercise deference to the trial court. 17. Having independently reviewed the evidence, I cannot fault the findings of the adjudicator. 18. As correctly noted in her judgment, the eyewitness, CW2’s, evidence that the Appellant was to be blamed for the accident was never challenged even on cross-examination. 19. The Appellant’s appeal is founded on the testimony of a person who was not an eyewitness, whose account of events was not stated by even the Appellant, who was the driver of the motor vehicle that was involved in the accident; 20. His version of events stands alone from the three witnesses who were there when the accident took place. 21. Hearsay evidence, more so where its source isn’t disclosed, cannot rebut or displace the cogent evidence of an eyewitness. 22. The fact that multiple police abstracts were issued with divergent details relating to the accident, coupled with the fact that the occurrence book contained the Appellant’s version of events, since she is the one who reported the accident, cannot dislodge the evidence of the eyewitness whose testimony was consistent with and corroborated by that of the Respondent. 23. My inescapable conclusion is that the decision of the adjudicator was not so unreasonable or perverse as to warrant interference by this Court. 24. I find that the adjudicator neither failed to consider relevant matters nor considered matters she ought not to have considered. 25. The upshot is that I find the appeal lacking in merit. I therefore order as follows; 1. The Appeal be and is hereby dismissed with costs to the Respondent. **Emmanuel Bitta** **Judge of the High Court** Dated, signed and delivered via Microsoft Teams, at Mombasa this 30th day of July 2026. In the presence of: Nechesah C/A Kariuki for the Appellant N/A for the Respondent