https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9542

Ngunzi v Kithya alias Mutisa Kithya (Civil Appeal E010 of 2025) [2026] KEHC 9542 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9542 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E010 of 2025 AN Ongeri, J June 25, 2026 Between Daniel Kioko Ngunzi Appellant and Ndolo Mutiso Kithya alias Mutisa Kithya Respondent (Being an appeal from the Judgment of HON. M. THIBARU (RM/ADJ.) in MACHAKOS SCCC NO. E227 of 2022 delivered on 27/11/2023) Judgment 1.In the Small Claims Court at Machakos being SCC Civil Suit No. E227 of 2022, the court delivered a judgment arising from a motor vehicle accident that occurred on November 5, 2022, along the Machakos-Kitui road. 2.According to the brief facts, the respondent was lawfully riding a motorcycle, registration number KMDQ 741W, when a motor vehicle, registration number KCY 960U, was allegedly driven so negligently and dangerously by the defendants or their agent that it hit the respondent's motorcycle, causing an accident and bodily injuries. 3.The respondent subsequently blamed the defendants for negligence and filed a claim for general damages, special damages, costs, and interest. 4.The first defendant failed to enter an appearance, resulting in an interlocutory judgment being entered against them. 5.Conversely, the appellant filed a response denying the allegations, blaming the respondent for the accident, and lodging a counterclaim for damages caused to his own motor vehicle. 6.The trial proceeded via oral evidence, where the respondent called witnesses and the appellant availed three witnesses to support his position. 7.Upon considering the evidence and submissions on record, the trial court framed the main issues for determination as liability and quantum. 8.The trial court noted that the investigating officer did not produce the relevant police station records, sketch plans, or an investigation report to demonstrate how the conclusion regarding fault was reached, despite visiting the scene shortly after the accident. 9.In the absence of an investigation report, sketch maps, or reliable eyewitness evidence to conclusively determine who was to blame, the trial court observed that the only certainty was that an accident had occurred and the respondent had sustained injuries. 10.The trial court agreed with the submissions on record that finding a party liable based solely on an entry in an occurrence book constitutes inadmissible hearsay, citing the principle in George Orodi v Republic [2020] eKLR. 11.Referencing the decision of Justice Majanja in Ndatho v Chebet (Civil Appeal 346 of 2018) [2022] KEHC 346 (KLR) (16 March 2022) (Judgment) and the Court of Appeal decision in Hussein Omar Farar v Lento Agencies (Civil Appeal 34 of 2005) [2006] eKLR, the trial court reasserted that where it is difficult to apportion blame clearly, liability must be shared equally. 12.Consequently, the trial court apportioned liability at a ratio of 50:50 between the parties. 13.Regarding the quantum of damages for the respondent's case, a medical report prepared by Doctor Titus Ndeti outlined extensive injuries, including a fracture of the left clavicle, a dislocation of the sterno-clavicular joint, a deformity of the left foot, and blunt injuries to the head, neck, anterior chest wall, lumbar region, right leg, left foot, and right knee. 14.For general damages, the respondent proposed an award of Kshs. 800,000, citing Kenya Power & Lighting Co. Ltd & Another v Ramadhan Kalama [2019] eKLR, while the appellant proposed a sum of Kshs. 10,000, relying on Ramadhan Kalama v Jane Wanja Njeru [2021] eKLR. 15.The trial court rejected the appellant's proposal as unreasonably low. The trial court noted a comparative case confirming an award of Kshs. 350,000 for soft tissue injuries and a fracture of the clavicle. 16.Considering the lapse of time and the nature of the injuries, the trial court determined that an award of Kshs. 450,000 was sufficient to compensate the respondent for general damages. 17.Additionally, the trial court awarded special damages in the sum of Kshs. 8,950, which had been duly supported by receipts produced by the respondent. 18.The trial court then evaluated the quantum on the counterclaim filed by the appellant. The appellant stated that his vehicle was damaged but failed to properly plead or specify the exact amount being claimed from the respondent. 19.The cost of repairs was only brought up during oral evidence, which contradicted established pleading rules. 20.The trial court cited Maritim & Another v Anjere [1990] eKLR to emphasize that special damages must be specifically pleaded and strictly proved. 21.It further anchored this rule on the Court of Appeal decision in National Industrial Credit Bank Ltd v Murithe [1997] eKLR, which confirmed that special damages not pleaded in the plaint cannot be recovered, and the degree of strictness depends on the specific circumstances of the case. 22.Furthermore, the trial court evaluated the assessor's evidence, noting that the photographs and assessment were taken almost one year after the accident, and the assessor only viewed the vehicle after it had already been repaired. 23.Because there was no assessment report or photographs available prior to the repairs being executed, the trial court deemed this evidence helpful to a limited extent and held that the appellant failed to prove his counterclaim, resulting in its dismissal. 24.Ultimately, judgment was entered in favour of the respondent. The trial court assessed the total damages at Kshs. 458,950, which comprised Kshs. 450,000 for general damages and Kshs. 8,950 for special damages. 25.Applying the 50% reduction for contributory liability, the trial court deducted Kshs. 229,475, resulting in a net award of Kshs. 229,475 payable to the respondent. 26.The trial court also granted costs to the respondent and ordered that interest accrue at court rates from the date of the judgment. 27.The appellant appealed against the said judgment on the following grounds;i.That the Magistrate wrongly apportioned liability at 50:50 despite evidence showing the Claimant was 100% at fault for the accident.ii.That the award of Kshs. 450,000/= in damages was excessive and unsupported by the evidence of the Claimant’s full fault.iii.That the Magistrate erred by awarding the Claimant full costs of the suit when liability had been shared equally, so costs should have been shared 50:50.iv.That the Magistrate wrongly dismissed the Appellant’s Counterclaim for Kshs. 98,000/= in repair costs, despite having found liability at 50:50. 28.The parties filed written submissions as follows;The appellant submitted that he appeals the lower court's decision delivered on 27th November 2023 on four main grounds: (a) erroneous 50:50 apportionment of liability, (b) excessive quantum of damages at Kshs. 450,000, (c) improper award of full costs to the respondent, and (d) wrongful dismissal of the appellant's counterclaim. 29.On liability, the appellant contends that the evidence, including the testimony of the investigating officer PC Peter Mwangi and the police abstract dated 5th November 2022, clearly showed that the respondent was 100% to blame for the accident by joining the main road from a feeder road without giving way and colliding with the appellant's vehicle, which was damaged on the left side as confirmed by the assessor. 30.The appellant argues that the respondent's claim of being hit from behind was contradicted by the physical evidence of damage to the appellant's vehicle and the testimony of the investigating officer who visited the scene within 6 to 10 minutes of the accident. 31.The appellant relies on the principle that the burden of proof in negligence rests on the plaintiff, as stated in Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022) , and submits that the respondent failed to discharge this burden by not calling any independent eyewitness to corroborate his version. 32.The appellant also relies on Kibichi v Mathai (Civil Appeal E003 of 2023) [2024] KEHC 4065 (KLR) (25 April 2024) for the proposition that a police abstract, being a public document, is sufficient proof of its contents on a balance of probabilities if not rebutted by the opposing party. 33.On quantum, the appellant submits that the award of Kshs. 450,000 was excessively high and that an award of between Kshs. 50,000 and Kshs. 100,000 would be more reasonable, given that the medical report indicated the respondent had fully recovered and was of sound mind. 34.The appellant cites Odinga Jacone Ouma v Moureen Achieng Odera [2016] KEHC 2922 (KLR) , where the court substituted an award of Kshs. 400,000 with Kshs. 180,000 for similar injuries, emphasizing that comparable injuries should attract comparable awards and that awards must be reasonable, moderate, and take inflation into account. 35.On costs, the appellant contends that the trial magistrate erred by awarding the respondent full costs of the suit despite having apportioned liability equally at 50:50, and argues that costs should have been shared proportionally. 36.On the counterclaim, the appellant submits that the trial magistrate erred in dismissing it despite having approved 50:50 liability and despite the assessor's report proving that the appellant's motor vehicle suffered damage at a cost of Kshs. 98,000. 37.The appellant relies on Silas Mutua Mberia v Muthoni Njue Veronica [2021] eKLR for the principle that an assessor's report is sufficient proof of material damage on a balance of probabilities, and that special damages need only be specifically proved, not necessarily shown to have been actually incurred. 38.The appellant therefore prays that the appeal be allowed, the lower court's judgment be set aside in its entirety, the respondent's suit be dismissed, judgment be entered for the appellant, and that the appellant be awarded costs of the suit in the lower court and of the appeal. 39.The respondent submitted that the appeal should be dismissed because it improperly challenges findings of fact, whereas appeals from the Small Claims Court are limited to matters of law under Section 38(1) of the Small Claims Court Act. 40.The Respondent contends that the trial magistrate properly analyzed the conflicting evidence, including testimony from the police officer which was deemed inadmissible hearsay due to the absence of supporting documents like the Occurrence Book or sketch plans. 41.In the absence of clear evidence to determine fault, the trial court correctly apportioned liability equally at 50:50, relying on the principle that where the court is unable to determine who is to blame, it can apportion liability equally, as illustrated in Hussein Omar Farar v Lento Agencies Civil Appeal No. 34/2005 [2006] eKLR and Ndatho v Chebet (Civil Appeal 8 of 2020) [2022] KEHC 346 (KLR). 42.On the issue of quantum, the Respondent argues that the award of Kshs. 450,000/- for general damages was not excessive, as the trial magistrate considered the nature of injuries sustained, including a fractured clavicle and other serious wounds, and made reference to comparable precedents. 43.The Respondent emphasizes that an appellate court will only interfere with an award of damages if the trial court acted on a wrong principle or the award is inordinately high, citing Kemfro Africa Ltd t/a "Meru Express Services" & Another v Lubia & Another [1982-88] I KAR 727 and Henry Hilanga v Manyema Manyoka [1961] IEA 705. 44.Regarding costs, the Respondent submits that the trial court properly exercised its discretion under Section 27 of the Civil Procedure Act to award costs to the successful party, arguing that the general rule that costs follow the event should not be departed from without good cause, as established in Hussein Janmohamed and Sons Ltd v Twentsche Overseas Trading Co. Ltd [1967] EA 287 and Ndegwa & 6 others v Registered Trustees of the Nyahururu Jamia Mosque [2023] KEELC 22626 (KLR). 45.Finally, the Respondent defends the dismissal of the Appellant's counterclaim, arguing that special damages for the repair of the motor vehicle were not specifically pleaded. 46.Further, that the evidence, including an assessor's report and photos taken almost a year after the accident when the vehicle had already been repaired, did not meet the standard of strict proof required for special damages as per Hahn v Singh [1985] KLR 716. 47.In conclusion, the Respondent prays for the dismissal of the appeal with costs, asserting that the trial court's judgment was sound in law and fact. 48.The first and most critical issue for determination is whether this appeal, emanating from the Small Claims Court, is properly before the High Court. 49.The appellate jurisdiction of the High Court over decisions of the Small Claims Court is circumscribed by Section 38(1) of the Small Claims Court Act, which provides that a person aggrieved by a decision or order of the Court may appeal to the High Court, but only on matters of law. 50.This is a jurisdictional question, and as the Court of Appeal held in the famous case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, jurisdiction is everything; without it, a court has no power to make one more step. 51.The High Court cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. 52.An appeal on a matter of fact from the Small Claims Court would be incompetent and liable to be struck out. 53.However, as the High Court has observed in other decisions, where an appeal raises both points of law and fact, the court should not take the drastic step of striking it out entirely but should instead disregard the factual points and determine only the legal ones. 54.Furthermore, an appellate court can interfere with an award of quantum of damages if it is satisfied that the trial court applied the wrong principles, for instance, by taking into account irrelevant factors or leaving out relevant ones, or if it misapprehended the evidence and arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate, which is a matter of law. 55.Upon reviewing the Memorandum of Appeal, this court finds that the grounds raised, including the apportionment of liability, the assessment of quantum, the award of costs, and the dismissal of the counterclaim, all touch on the application and interpretation of legal principles and whether the trial court acted on a wrong legal principle. 56.For instance, the challenge to the 50:50 apportionment of liability questions the trial court's application of the legal principle which allows for equal apportionment where it is difficult to determine fault. 57.Similarly, the challenge to quantum questions whether the trial court applied the correct legal principles in assessing general damages. 58.Therefore, while the appeal is peppered with references to evidence, the core complaints are essentially matters of law, and thus this court finds that it has the jurisdiction to entertain the appeal. 59.Moving to the substance of the appeal, the second issue for determination is whether the trial court erred in apportioning liability at 50:50. 60.The appellant argues that the evidence, particularly the testimony of the investigating officer and the police abstract, showed the respondent was 100% to blame. 61.The respondent, on the other hand, contends that the trial court correctly analyzed the conflicting evidence and, in the absence of clear evidence, correctly applied the principle of equal apportionment. 62.In its judgment, the trial court noted that the investigating officer did not produce the relevant police station records, sketch plans, or an investigation report to demonstrate how the conclusion regarding fault was reached, despite visiting the scene shortly after the accident. 63.The trial court further noted that an entry in an occurrence book, without more, constitutes inadmissible hearsay, citing the principle in George Orodi v Republic(supra). 64.Faced with this evidentiary lacuna and conflicting testimonies, the trial court correctly referred to the decision in Hussein Omar Farar v Lento Agencies (supra)and Ndatho v Chebet (supra), which reassert the principle that where it is difficult to apportion blame clearly, liability must be shared equally. 65.This court finds no error in the trial court's application of this legal principle. The appellant failed to provide the necessary documentary evidence to support his version of events, and the trial court cannot be faulted for resorting to the established legal principle of equal apportionment in the face of such uncertainty. 66.The ground of appeal challenging the apportionment of liability therefore fails. 67.The third issue is whether the award of Kshs. 450,000 for general damages was inordinately high. 68.The appellant contends that the award was excessive, while the respondent argues that it was justified given the nature of the injuries. 69.The legal principles for interfering with an award of damages are well settled. An appellate court will only interfere if the trial court acted on a wrong principle or the award is inordinately high or low. 70.The trial court considered the medical report prepared by Doctor Titus Ndeti, which detailed extensive injuries including a fracture of the left clavicle, a dislocation of the sterno-clavicular joint, a deformity of the left foot, and blunt injuries to various body parts. 71.The trial court also considered comparable authorities and rejected the appellant's proposal of Kshs. 10,000 as unreasonably low. It awarded Kshs. 450,000 for general damages and Kshs. 8,950 for special damages. 72.This court is not persuaded that the trial court acted on a wrong principle or that the award is so inordinately high as to represent an erroneous estimate. 73.The trial court duly considered the nature and extent of the injuries and comparable awards. The ground of appeal challenging the quantum of damages therefore fails. 74.The fourth issue is whether the trial court erred in awarding the respondent full costs of the suit despite apportioning liability equally. 75.Section 27 of the Civil Procedure Act governs the award of costs and provides that costs follow the event. 76.The trial court exercised its discretion to award costs to the respondent, who was the successful party. 77.Therefore, this court finds no error in the trial court's exercise of its discretion to award costs to the respondent. The ground of appeal challenging the award of costs fails. 78.Finally, the fifth issue is whether the trial court erred in dismissing the appellant's counterclaim. 79.The appellant argues that the trial court erred in dismissing the counterclaim despite having approved 50:50 liability and despite the assessor's report proving the damage. 80.The respondent, however, contends that the special damages for the repair of the motor vehicle were not specifically pleaded and that the evidence did not meet the standard of strict proof. 81.The law on special damages is clear: they must be specifically pleaded and strictly proved. This was affirmed in the cases of Maritim & Another v Anjere (supra) and Hahn v Singh (supra). 82.The trial court correctly noted that the appellant failed to properly plead or specify the exact amount being claimed for the cost of repairs in his counterclaim. 83.The cost of repairs was only brought up during oral evidence, which contradicts established pleading rules. 84.Furthermore, the trial court observed that the assessor's report and photographs were taken almost a year after the accident, and the assessor only viewed the vehicle after it had already been repaired. 85.In the absence of an assessment report or photographs prior to the repairs being executed, the trial court deemed the evidence insufficient to prove the claim to the required standard. 86.This court finds that the trial court correctly applied the legal principles governing the pleading and proof of special damages. 87.The ground of appeal challenging the dismissal of the counterclaim therefore fails. 88.Consequently, this appeal is found to be without merit and is hereby dismissed with costs to the respondent. 89.Orders to issue accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 25TH DAY OF JUNE 2026ASENATH ONGERIJUDGEIn the presence ofNo appearance for the AppellantMiss Mutuku for the RespondentChrispin - Court Assistant