https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11145

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU COUNTY COURT NAME: THIKA HIGH COURT CASE NUMBER: HCCA/E244/2025 DEENIS MURIMI MWANGI VS DENNIS NJUGUNA JUDGMENT ***(Being an Appeal against the Judgment of Hon. Sylvia A. Wayodi (RM) delivered on 28th August, 2025, in Thika SCC No. E820 of 2024)*** # INTRODUCTION * 1. This Appeal arises from the Judgment of Hon. Sylvia A. Wayodi (RM) delivered on 28th August 2025 in Thika Small Claims Court Case No. E820 of 2024, Dennis Murimi Mwangi v Dennis Njuguna. # BRIEF FACTS 1. The Respondent (the Claimant before the trial court) instituted a claim seeking special damages arising from a road traffic accident which occurred on or about 4th August 2024 at approximately 1800 hours. The Respondent alleged that while lawfully riding motorcycle registration number KMGM 662R, the Appellant, through the negligent and careless driving of motor vehicle registration number KCL 544M, caused a collision that resulted in damage to the motorcycle. Consequently, the Respondent incurred repair expenses and sought medical attention. In support of the claim, the Respondent produced, inter alia, a Police Abstract, receipts evidencing the repair costs, and a copy of records confirming ownership of the motor vehicle. 1. The Appellant (the Defendant before the trial court) filed a Response to the Claim denying all the allegations contained in the Statement of Claim. The Appellant further averred that the accident was wholly or substantially caused and/or contributed to by the negligence of the Respondent. However, the Appellant did not produce any documentary evidence or call any witness to substantiate the allegations of contributory negligence. 2. Judgment was delivered on 28th August 2025. The learned trial magistrate identified two issues for determination, namely: 1. *Whether the Claimant had proved his case on a balance of probabilities; and* 2. *Who was to bear the costs of the suit.* 3. In determining liability, the trial court found that the Respondent had produced a Police Abstract confirming the occurrence of the accident and a copy of records establishing ownership of motor vehicle registration number KCL 544M. Although the Appellant had pleaded contributory negligence on the part of the Respondent, no witness was called to explain the Appellant's version of how the accident occurred. The court noted the Appellant's contention that the Respondent had suddenly swerved into his lane at close range but observed that the allegation remained unsubstantiated by evidence. Consequently, the court held that the Appellant was solely liable for the accident for failing to maintain a safe distance and keep a proper lookout, thereby colliding with the Respondent's motorcycle from the rear. 4. On quantum, the trial court found that the Respondent had proved special damages by producing receipts showing repair costs amounting to Kshs. 178,118/= together with a motor vehicle search fee of Kshs. 550/=. The court therefore entered judgment against the Appellant for Kshs. 178,668/= as special damages, together with costs of the suit and interest, and held the Appellant 100% liable for the accident. 5. Being dissatisfied with the whole of the said Judgment, the Appellant filed a Memorandum of Appeal dated 26th September 2025 setting out the following grounds of appeal:- 6. *That the learned trial magistrate erred in law and in fact in finding the Appellant 100% liable for the accident while disregarding the evidence tendered on behalf of the defence.* 7. *That the learned trial magistrate erred in law and in fact in awarding the Respondent special damages in the sum of Kshs. 178,668/=.* 8. *That the award of damages was excessive and constituted an erroneous estimate of the damages payable in the circumstances of the case and having regard to the applicable legal principles and comparable authorities.* 9. The Appellant consequently seeks orders that; The Appeal be allowed, this Honorable court be pleased to set aside and/or vary the trial court's finding on liability, This Honorable court be pleased to review and reassess the award of damages, the Respondent do bear the costs of this Appeal and the costs of the proceedings before the trial court. # SUBMISSION BY PARTIES ## Appellants Submissions 1. On the first issue for determination, namely whether the learned trial magistrate erred in holding the Appellant 100% liable for the accident, the Appellant submitted that liability must be established on the basis of credible and cogent evidence. It was further submitted that where the evidence discloses circumstances giving rise to contributory negligence, the court is under a duty to apportion liability accordingly. 2. The Appellant submitted that the Respondent, as the principal witness, failed to discharge the burden of proof on a balance of probabilities. In particular, the Appellant contended that: the Police Abstract merely confirmed the occurrence of the accident and the injuries sustained but made no reference to any damage to the motorcycle; the Police Abstract did not apportion blame and expressly indicated that investigations were pending, and was therefore incapable of establishing liability; no independent witness, including the Investigating Officer, was called to corroborate the Respondent's account of the accident; and no photographs of the accident scene or the damaged motorcycle were produced to support the Respondent's version of events. 1. The Appellant relied on various authorities and submitted that both the driver of the motor vehicle and the rider of the motorcycle owed each other a reciprocal duty of care and were each required to take reasonable steps to avoid the accident. Consequently, the learned trial magistrate erred in holding the Appellant wholly liable instead of finding that the Respondent had contributed to the occurrence of the accident through contributory negligence. 2. On the second issue, namely whether the learned trial magistrate erred in principle in the assessment of damages, the Appellant submitted that the Respondent failed to adduce sufficient and credible evidence in support of the claim for special damages. In particular, the Appellant argued that no motor vehicle assessor's report was produced to substantiate the alleged damage to the motorcycle, and that the receipts produced did not sufficiently disclose the nature, source, or basis of the repairs undertaken. Relying on various judicial authorities, the Appellant submitted that special damages must not only be specifically pleaded but must also be strictly proved. The Appellant therefore urged the court to find that the Respondent failed to discharge the requisite burden of proof and to interfere with the award made by the trial court. ## Respondent’s Submissions 1. The Respondent raised a preliminary issue as to the competence of the Appeal and submitted that it ought to be struck out for failure by the Appellant to include a certified copy of the decree in the Record of Appeal. In support of this submission, the Respondent relied on the provisions of **Order** ## 42 Rules 13 and 14(f) of the Civil Procedure Rules. 1. The Respondent further submitted that, notwithstanding the constitutional imperative under **Article 159 of the Constitution** to administer justice without undue regard to procedural technicalities, the omission of a fundamental jurisdictional document such as the decree, without any sufficient explanation, renders the Appeal incompetent. It was contended that the order and/or decree appealed from was not included in the Record of Appeal, and that the Appellant neither filed a Supplementary Record of Appeal nor offered any explanation for the omission. The Respondent also relied on **Order 42 Rule 2 of the Civil Procedure Rules**, which requires an appellant to file the decree or order appealed against. 1. On the merits of the Appeal, the Respondent submitted that although the Appellant challenged the trial court's finding on liability, the Appellant neither testified nor called any witness to rebut the Respondent's evidence. Consequently, the Respondent's evidence remained uncontroverted and the learned trial magistrate was entitled to accept it as the true account of how the accident occurred. 2. The Respondent further submitted that the Appellant did not dispute the occurrence of the accident. It was also argued that the Police Abstract was produced without objection and sufficiently confirmed the occurrence of the accident and the particulars of the vehicles involved. In addition, police officers from Buruburu Police Station visited the scene and confirmed that the accident had indeed occurred. The Respondent maintained that Police Abstracts ordinarily record the occurrence of an accident and the vehicles involved, and are not intended to provide details of the damage sustained by the respective vehicles. 3. The Respondent submitted that the Appellant failed to adduce any evidence to rebut the Respondent's claim. Accordingly, the trial court correctly found that the Respondent had proved his case on a balance of probabilities and properly entered judgment in his favor. 4. On the issue of special damages, the Respondent relied on the provisions of the Small Claims Court Rules, 2019 (Legal Notice No. 145 of 2019) and submitted that the applicable requirements are satisfied where a claimant produces either an estimate of the cost of repairs or itemized receipts evidencing the repairs undertaken. The Respondent maintained that the requisite documentary evidence was duly produced before the trial court. Consequently, the Respondent urged this court to find that the Appeal is incompetent and devoid of merit, to strike it out or, in the alternative, dismiss it with costs to the Respondent. # ISSUES FOR DETERMINATION 1. Having considered the Memorandum of Appeal, the Record of Appeal, the judgment of the trial court and the rival submissions by the parties, the following issues arise for determination: - 1. Whether the Appeal is incompetent for failure to include a certified copy of the decree in the Record of Appeal. 2. Whether the learned trial magistrate erred in finding the Appellant 100% liable for the accident. 3. Whether the Respondent strictly proved his claim for special damages and whether the learned trial magistrate erred in the assessment of damages. 4. Who should bear the costs of this Appeal # ANALYSIS OF THE ISSUES FOR DETERMINATION 1. This being a first appeal, this court is obligated to reconsider and re-evaluate the entire evidence tendered before the trial court and draw its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify and should therefore give due allowance for that disadvantage. 2. The principles governing a first appellate court were succinctly stated in **Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123**, where the court held that a first appellate court is under a duty to reconsider the evidence, evaluate it itself and draw its own conclusions though bearing in mind that it neither saw nor heard the witnesses. 1. Guided by the foregoing principles, this court has carefully examined the pleadings, the documentary evidence produced before the Small Claims Court, the judgment appealed against and the submissions filed by the parties. ## Whether the Appeal is incompetent for failure to attach a decree 1. The Respondent has urged this court to strike out the Appeal on the ground that the Record of Appeal does not contain a certified copy of the decree contrary to Order 42 Rule 2 of the Civil Procedure Rules. 2. Order 42 Rule 2 provides that where a certified copy of the decree or order appealed against is not filed together with the memorandum of appeal, the same should be filed as soon as possible and within such time as the court may order. 3. The Court of Appeal in ***Gregory Kiema Kyuma vs. Marietta Syokau Kiema (1988) KLR 185*** observed that ordinarily an appeal is against a decree or an order and not against the judgment itself. However, courts have over the years adopted a purposive approach where the omission does not occasion prejudice and the judgment appealed from is available. 4. The court is equally guided by **Article 159(2)(d) of the Constitution**, which enjoins courts to administer justice without undue regard to procedural technicalities. 5. In the present case, although the certified decree was omitted from the Record of Appeal, the impugned judgment has been included in the record and clearly identifies the decision being challenged. The Respondent has not demonstrated any prejudice occasioned by the omission. Further, the omission is curable and does not go to the jurisdiction of the court. 6. Accordingly, this court declines the invitation to strike out the Appeal solely on that procedural omission and proceeds to determine the Appeal on its merits. ## Whether the learned trial magistrate erred in finding the Appellant wholly liable 1. The burden of proof in civil proceedings lies upon the party asserting a fact. Sections 107 and 109 of the Evidence Act are explicit that he who alleges must prove. 2. The Respondent testified before the trial court that while lawfully riding motorcycle registration number KMGM 662R, the Appellant's motor vehicle registration number KCL 544M collided with the motorcycle from behind, causing damage thereto. The Respondent produced a Police Abstract confirming the occurrence of the accident, a copy of records establishing ownership of the motor vehicle and receipts evidencing the repair costs. 3. The Appellant filed a defence denying liability and pleaded contributory negligence. However, beyond the pleadings, the Appellant neither testified nor called any witness to explain how the accident occurred. No documentary evidence was produced to support the allegations that the Respondent negligently swerved into the Appellant's lane. 4. It is trite law that pleadings are not evidence. A party who merely files a defence without adducing evidence leaves the factual assertions contained therein unproved. 5. The Court of Appeal in ***CMC Aviation Ltd v Cruisair Ltd (No. 1) (1987) KLR 103*** held that where no evidence is called in support of pleadings, the pleadings remain mere statements of fact and cannot amount to evidence. The court expressly stated as follows, ***“the pleadings in a suit are not normally evidence if they are expressly or impliedly admitted as then the admission itself is evidence. Evidence is usually given on oaths. Averments are not made on oath. Averments depend upon evidence for proof of their contents.”*** The pleadings in a suit are not normally evidence. They may become evidence if they are expressly or impliedly admitted as then the admission itself is evidence. Evidence is usually given on oath. Averments are not made on oath. Averments depend upon evidence for proof of their contents. 1. Similarly, in ***Trust Bank Limited v Paramount Universal Bank Limited & 2 Others (2009) eKLR***, the court reiterated that submissions cannot take the place of evidence. The Appellant argued that the Police Abstract did not apportion blame and that no investigating officer testified. 2. While it is correct that a Police Abstract by itself does not conclusively establish liability, liability is determined upon the totality of the evidence before the court. The Respondent's evidence on how the accident occurred remained uncontroverted. The Appellant did not present any alternative account of the accident. It is therefore insufficient for the Appellant merely to deny liability and invite the court to infer contributory negligence without evidential support. 3. Indeed, contributory negligence is a matter of evidence and not speculation. A court cannot apportion liability in the absence of evidence demonstrating the Respondent's contribution to the occurrence of the accident. 4. Upon re-evaluating the record, this court finds no basis upon which to interfere with the trial court's finding on liability. The learned magistrate properly appreciated that the Respondent had discharged the burden of proof on a balance of probabilities and that the Appellant had failed to rebut that evidence. ## Whether the Respondent strictly proved special damages 1. The law regarding special damages is settled. In ***Hahn v Singh (1985) KLR 716***, the Court of Appeal held that special damages must not only be specifically pleaded but must also be strictly proved. 2. The Respondent pleaded repair costs amounting to Kshs.178,118/= together with search fees of Kshs.550/=. During trial, receipts evidencing those expenditures were produced without objection. 3. The Appellant contends that an assessor's report ought to have been produced. This court is unable to agree. 4. The proceedings originated in the Small Claims Court whose objective is to facilitate the just, expeditious and proportionate determination of disputes. Under the applicable Small Claims Court framework, proof of repair costs may be established through receipts or other documentary evidence demonstrating the expenditure incurred. 5. The absence of an assessor's report does not, by itself, invalidate receipts that were duly produced and admitted into evidence without objection. The Appellant equally did not produce any contrary evidence disputing either the authenticity of the receipts or the amounts reflected therein. 6. Consequently, the learned magistrate cannot be faulted for concluding that the Respondent had strictly proved the pleaded special damages. This court finds no reason to interfere with the award of Kshs.178,668/=. # DISPOSITION 1. Having independently re-evaluated the entire record as required of a first appellate court, this court finds that the omission to include a certified copy of the decree in the Record of Appeal is a curable procedural defect that does not render the Appeal incompetent. Further, the Respondent proved his claim on a balance of probabilities, while the Appellant failed to adduce any evidence to substantiate the pleaded allegations of contributory negligence. The Respondent also strictly proved the pleaded special damages through uncontroverted documentary evidence. Consequently, this court finds no error in the learned trial magistrate's appreciation of the evidence or application of the law to warrant interference with the impugned judgment. 2. Accordingly, this court orders as follows; 1. The Appeal lacks merit and is hereby dismissed in its entirety. 2. The Judgment of the Small Claims Court delivered on 28th August 2025 in Thika SCC No. E820 of 2024 is hereby upheld. * 1. The Respondent shall have the costs of this Appeal, together with interest thereon at court rates where applicable. 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: 2026-07-22 13:45:13