https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10766

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL APPELLATE DIVISION** **HCCSCA NO. E1439 OF 2023** **DIANA KAGEHA OMINDE …………………….…............ APPELLANT** **VERSUS** **DAVID MUNIU NJUGUNA ………………….………… 1ST RESPONDENT** **PETER MWENDA ……………………………….…… 2ND RESPONDENT** **CHRISTANUS LUBANGA OTOYI …….………….……. 3RD RESPONDENT** ***(Being an Appeal from the Judgment of Hon. Lemayan Robert Rotich (Adjudicator) delivered on 8th December 2023 in Milimani SCCC No. E4204 of 2023)*** **JUDGMENT** **Introduction** 1. This appeal arises from the judgment of the Small Claims Court at Milimani (***Lemayan Robert Rotich, Adjudicator***) delivered on 8th December 2023 in Milimani SCCC No. E4204 of 2023. 2. On 19th September 2020, at around 12.45 p.m., an accident occurred along Mbagathi Road involving the respondent’s motor vehicle KBL 454J and the appellant’s motor vehicle KAT 966H. **Factual History** 1. The 1st respondent, on behalf of its insurer Fidelity Shield Insurance Company Limited under the principle of subrogation, lodged a statement of claim dated 28th August 2023 blaming the appellant for the accident. It was the 1st respondent’s case that the appellant’s motor vehicle was driven negligently and carelessly and as a result, hit his motor vehicle occasioning loss to the tune of Kshs. 225,888/-. 2. The appellant filed her response dated 5th October 2023 denying both the claim and being the owner of motor vehicle KAT 966H. In the alternative, she pleaded that the accident was caused substantially by the 1st respondent’s own negligence. 3. She also lodged third party notices against the 2nd and 3rd respondents on the basis that they were the owners/beneficial owners of motor vehicle KCW 097D, which was driven negligently that it hit her vehicle. 4. The third parties were served but did not enter appearance, and consequently, interlocutory judgment was entered against them on 17th November 2023. 5. By a Judgment delivered on 8th December 2023, the trial Adjudicator relied on the contents of the police abstract to determine that the appellant was the owner of KAT 966H since the motor vehicle copy of records did not indicate the owner. In doing so, he relied on the Court of Appeal case of ***Wellington Nganga Muthiora vs Akamba Public Road Services Ltd. & Another (2010) eKLR***. Furthermore, the trial court noted, during trial, the appellant herself confirmed that the said motor vehicle was hers. 6. On liability, the trial court considered the evidence of PW2, a police officer attached to Lang’ata Police Station. He blamed the appellant, who joined the acceleration lane from the petrol station without giving way to KCW 097D. This then caused KCW 097D to ram into KAT 966H, which again rammed into KBL 454J. While the appellant challenged PW2’s evidence, the trial court observed that she did not adduce any contrary evidence and therefore found her 100% liable for the accident. 7. With respect to the third parties, it was the trial court’s finding that in as much as interlocutory judgment was entered against them, the appellant did not prove that they were responsible for the accident. Accordingly, the trial court set aside the interlocutory judgment entered against them. 8. On quantum, the trial Magistrate awarded Kshs. 225,888/- and costs as sought. The appellant’s contention with the damages was dismissed since, despite raising such challenge, she only produced photographs to show that the extent of damage was minimal, but failed to produce an expert report to counter the 1st respondent’s expert report. **The Appeal** 1. Dissatisfied with the trial court’s decision, the appellant filed a Memorandum of Appeal dated 18th December 2023 raising the following grounds of appeal, that the Learned Trial Magistrate erred : 2. *In law and fact by finding the appellant 100% liable for causing the accident yet the 1st respondent admitted that the 2nd and 3rd respondents caused the accident.* 3. *In law and fact by finding the appellant 100% liable for causing the accident yet the appellant shifted the blame to the 2nd and 3rd respondents who caused the accident.* 4. *In law and fact by failing to find the 2nd and 3rd respondents 100% liable for causing the road accident.* 5. *In law and fact by failing to hold that the evidence adduced by the 1st respondent was in variance with the documents and the pleadings.* 6. *In law and in fact in failing to analyze the evidence adduced.* 7. *In law and fact and awarded special damages to the 1st respondent against the weight of the evidence adduced.* 8. *In law and fact by failing to hold that the respondent failed to prove ownership of the accident motor vehicle by the appellant.* 9. *In misdirecting himself in ignoring the evidence and written submissions presented and filed by the appellant in its entirety.* 10. *In not taking into account the fact that the 1st respondent’s case failed to meet the threshold of proof required and hence the finding of liability against the appellant and the award thereto offends trite legal principles and is untenable.* 11. *In law and fact in shifting the burden of proof to the appellant.* 12. Accordingly, the appellant prayed for the appeal to be allowed and the Judgment of the trial court be set aside. **The Appellant’s Submissions** 1. In support of her appeal, the appellant filed submissions dated 28th March 2025 contending that her witness statement, photographic evidence and the 1st respondent’s witness statement indicated that the 2nd and 3rd respondents caused the accident that led to the damage on both the appellant and 1st respondent’s motor vehicles. She took the position that the trial court erred by apportioning liability to her. 2. Citing ***United Millers Ltd. & Anor. vs Wambacha (Suing as the Personal Representative of the Estate of Rose Nasipwondi Wakuma- Deceased); Ndirangu (Third Party) (Civil Appeal 28 of 2020) [2022] KEHC 17130 (KLR)***, the appellant submitted that having entered interlocutory judgment against the third parties, the trial court was required to determine liability between her and the third parties. Having proved her case on a balance of probabilities, the appellant urged that the trial court erred by failing to find the 2nd and 3rd respondents liable. **The 1st Respondent’s Submissions** 1. In his submissions dated 5th August 2025 opposing the appeal, the 1st respondent argued that in arriving at its ultimate conclusion, the trial court considered the parties’ conflicting accounts on the occurrence of the accident. Further, pointed out the 1st respondent, the trial court held that no evidence was adduced to support any finding of liability against the 2nd and 3rd respondents. 2. As for the award on quantum, the respondent averred that he proved the special damages which were subsequently awarded by the trial court. 3. In the end, he urged the Court to dismiss the appeal for being unmeritorious. 4. The 2nd and 3rd respondents did not participate in this appeal. **ANALYSIS AND DETERMINATION** 1. I have considered the proceedings and judgment of the trial court, the appeal and rival submissions made before me. Being an appeal from the Small Claims Court, this Court’s jurisdiction is restricted to matters of law as more specifically outlined in Section 38 of the Small Claims Court Act. 2. I will first consider whether the grounds of appeal meet this jurisdictional threshold. What is a question of law? In ***Abdullahi vs Nooru & 3 Others (Civil Appeal 300 of 2013) [2014] KECA 707 (KLR)***, the Court of Appeal answered this query in the following terms: ***Black’s Law Dictionary defines the two terms as follows;*** ***“Matter of fact: A matter involving a judicial inquiry into the truth of alleged facts and Matter of law: A matter involving a judicial inquiry into the applicable law.”*** ***One of the best expositions on the distinction between the two is to be found in the judgment of Denning J in the English case of BRACEGIRDLE Vs. OXLEY (2) [1947] 1 ALL E.R. 126 at p 130;*** ***“The question whether a determination by a tribunal is a determination in point of fact or in point of law frequently occurs. On such a question there is one distinction that must always be kept in mind, namely, the distinction between primary facts and conclusions from those facts. Primary facts are facts which are observed by the witnesses and proved by testimony; conclusions from those facts are inferences deducted by a process of reasoning from them. The determination of primary facts is always a question of fact. It is essentially a matter for the tribunal who sees the witnesses to assess their credibility and to decide the primary facts which depend on them. The conclusions from those facts are sometimes conclusions of fact and sometimes conclusions of law. In a case under the Road Traffic Act, 1930, s. 11, the question whether a speed is dangerous is a question of degree and a conclusion on a question of degree is a conclusion of fact. The court will only interfere if the conclusion cannot reasonably be drawn from the primary facts, and that is the case here. The conclusion drawn by these justices from the primary facts, was not one that could reasonably be drawn from them.”*** 1. This task is undoubtedly a surgical one as noted by the Court of Appeal in the above-mentioned case. It held: ***There is no denying from the cases we have referred to, that in not a few cases the determination of whether a particular complaint on appeal is a question of law or of fact is not always a very straight-forward one, not least because the determination of whether a lower court drew the correct legal conclusions inevitably entails an examination of the factual basis of the decision. That reality has with it the inherent danger that legal ingenuity may attempt to dress-up and camouflage purely factual issues with the borrowed garb of “legalness.” This is what the majority of this Court had in mind in M’RIUNGU AND OTHERS Vs. R [1982-88] 1 KAR 360 when it stated, (per Chesoni AJA) at p366;*** ***“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.”*** 1. I draw further guidance from ***Kenya Breweries Ltd. vs Odoyo (Civil Appeal 127 of 2007) [2010] KECA 498 (KLR)***, where the Court of Appeal held that an appeal on matters of law may require the evaluation of facts to determine whether the court below considered matters it should not have, failed to consider matters it should have or the entire decision is not supported by the evidence. 2. Looking at ground (v) and (viii), though framed as failures to consider or ignoring evidence, they in substance challenge the trial court’s evaluation and weight of the evidence. However, the learned trial Magistrate expressly considered and rejected the said evidence. In the circumstances, the appellant has not demonstrated that there was a misdirection in law, failure to consider material evidence, or reliance on inadmissible matters and these grounds are accordingly dismissed. 3. As for ground (iv), it appears that the appellant did not submit on it and I shall therefore deem the same abandoned. 4. The remaining grounds can be clustered into 3 issues: 5. *Whether the 1st respondent discharged the burden of proof.* 6. *Whether the trial court shifted the burden of proof to the appellant.* 7. *Whether the appellant proved her case against the 2nd and 3rd respondents.* 8. The legal burden of proof remains throughout on the party asserting the claim under Sections 107 and 108 of the Evidence Act. However, once that party establishes a prima facie case, the evidential burden shifts to the opposing party in respect of facts peculiarly within that party's knowledge under Sections 109 and 112. This principle was authoritatively stated by the Court of Appeal in ***Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334***, where the Court held that although the legal burden remains constant, the evidential burden keeps shifting during the trial according to the evidence adduced. 9. The appellant contended that the 1st respondent failed to prove that she was the owner of KAT 966H and failed to prove the special damages. With respect to the motor vehicle, I note that the trial Magistrate held that the police abstract proved that the appellant was the owner and further, by her own evidence, the appellant admitted as much. As for the special damages, it is trite law that they must be specifically pleaded and proved. See ***Maritim & Another vs Anjere (1990-1994) EA*** 312. In this connection, the 1st respondent provided receipts which the trial court considered in allowing this claim. These receipts were not controverted, nor was their evidentiary weight displaced by the photographs adduced by the appellant. I therefore find that grounds (vi), (vii) and (ix) of the Memorandum of Appeal fail. 10. On the second issue *whether the trial court shifted the burden of proof to the appellant*, it is commonplace that the initial burden of proof lay on the 1st respondent under Section 107(1) of the Evidence Act. As established hereinabove, the 1st respondent met this obligation. Accordingly, having discharged his legal burden of proof, the evidential burden of proof shifted to the appellant to dislodge the same. See ***Jane Wangechi Irungu vs Gerald Irungu [2022] KEHC 1363 (KLR)***. This cannot, by any stretch of the imagination, be interpreted to mean that the legal burden of proof was shifted to the appellant. In any case, the appellant has not established how the trial court shifted the legal burden of proof to her. Accordingly, I am inclined to dismiss ground 10. 11. On the last issue, *whether the appellant proved her case against the 2nd and 3rd respondents*, it is settled law in civil cases, a party who wishes the court to give a judgment or to declare any legal right dependent on a particular fact or sets of facts, that party has a legal obligation to provide evidence that will best facilitate the proof of the existence of those facts. (Section 107 of the Evidence Act) The party must present to the court all the evidence reasonably available on a litigated factual issue. It therefore behooved the appellant to prove that the 2nd and 3rd respondents were to blame for the accident. 12. However, the evidence on record points to a different reality. According to PW2, the appellant joined the highway from a petrol station, the same highway both KCW 097D and KBL 454J were on. It was at this juncture that the KCW 097D rammed her car in the rear causing her to ram into KBL 454J. While a driver who collides with another vehicle from the rear is generally presumed to be at fault, a contrary finding will be made if such evidence is adduced. (See ***Orioki vs Kevian Kenya Limited (Civil Appeal 341 of 2019) [2025] KECA 780 (KLR)***; ***Njuguna vs Chogo [1985] KLR 452;*** ***Lamek vs Mutungu (Civil Appeal E088 of 2023) [2026] KEHC 2836 (KLR)***. 13. In this case, PW2 testified that the appellant failed to give way while joining the road, thereby causing the accident. The trial court on its part held that PW2’s testimony corroborated the 1st respondent’s testimony. I find no reason to disturb this finding. As to whether the 1st respondent admitted that the 2nd and 3rd respondents caused the accident, do the 1st respondent’s statements qualify as an admission? The *locus classicus* on ‘admissions’, ***Choitram & Another vs Nazari (Civil Appeal 8 of 1982) [1984] KECA 47 (KLR)*** clarifies thus: ***“21. … Admissions have to be plain and obvious, as plain as a pikestaff and clearly readable because they may result in judgment being entered. They must be obvious on the face of them without requiring a magnifying glass to ascertain their meaning. Much depends upon the language used. The admissions must leave no room for doubt that the parties passed out of the stage of negotiations onto a definite contract. It matters not if the situation is arguable, even if there is a substantial argument, it is an ingredient of jurisprudence, provided that a plain and obvious case is established upon admissions by analysis. Indeed, there is no other way, and analysis is unavoidable to determine whether admission of fact has been made either on the pleadings or otherwise to give such judgment as upon such admissions any party may be entitled to without waiting for the determination of any other question between the parties. In considering the matter, the judge must neither become disinclined nor lose himself in the jungle of words even when faced with a plaint such as the one in this case.”*** 1. Are the 1st respondent’s statements plain and obvious? I believe not. Going by the record, they do leave room for doubt. The record reflects that he merely stated that the 2nd and 3rd respondents hit the appellant, who then rammed into his motor vehicle. To my mind, those words signal no admission. Accordingly, grounds (i), (ii) and (iii) fail. 2. In the circumstances, I find no basis to disturb the trial court’s Judgment and the same is upheld. The appeal is dismissed with costs to the 1st respondent. It is so ordered. ***Dated, Delivered and Signed*** *at* ***Nairobi this 16th day of July 2026.*** **DAVID MBURU** **JUDGE** **In the presence of:** **Mr. for the Appellant** **Mr. for the Respondent** **Court Assistant**