https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8608

Kiarie v Nzangi & another (Civil Appeal E011 of 2025) [2026] KEHC 8608 (KLR) (Civ) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8608 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E011 of 2025 D Mburu, J June 18, 2026 Between Elijohn Njema Kiarie Appellant and Alice Katunge Nzangi 1st Respondent John Nzangi 2nd Respondent (Being an appeal from the judgment and decree of Hon. V. K. Momanyi (Ms) RM/Adjudicator delivered on the 6th December 2024 in NBI SCCCOMM No. E2292 of 2024) Judgment 1.The appellant filed a claim before the Small Claims Court through his statement of claim dated 3rd May 2024 as further amended on 15th November 2024 by which he claimed the sum of Kshs. 551,489/=, interest and costs of the suit. The claim was in respect of material damage to the appellant’s motor vehicle registration number KCU 363D following a road traffic accident. It was the appellants’ case that the said accident which occurred on 7th May 2021 along Langata road was caused by the negligence of the respondents’ driver as per particulars pleaded in the statement of claim. 2.The 1st respondent entered appearance and filed a response to amended statement of claim dated 14th November 2024 denying all allegations pleaded against her and therefore urged the court to dismiss the claim with costs. 3.In her judgment, the trial adjudicator found that the appellants had not proved their claim and dismissed it with costs. The trial court stated that the main reason for dismissal of the claim was the appellant’s failure to file and/or produce documents in support of his claim. 4.Being dissatisfied with the said judgment/decree, the appellants lodged this appeal vide the Memorandum of Appeal dated 6th January 2025 and raised seven (7) grounds of appeal as follows: -1.That the learned Adjudicator erred in fact and law by holding that the claimant did not specifically admit documents on record when parties had agreed to rely on the documents on record as at the time of taking directions on how to prosecute the matter hence all documents filed by the claimant were proper, and ought to have been considered as evidence on record in arbitrating the issue of liability between the parties, thereby arriving at an erroneous conclusion.2.The learned magistrate erred in law and fact by misapplying and misconstruing the law, especially sections 30 and 32 of the Small Claims Act hence failing to consider the totality of the documents uploaded on the system as at the time of taking directions regarding this matter.3.The learned magistrate erred in law and fact in failing to deliberate and consider all the evidence availed by the claimant hence erred in her finding that the claimant did not discharge his burden of proving his claim.4.That the learned magistrate erred in law and fact in failing to interrogate the totality of the evidence presented by the claimant thereby arriving at an erroneous conclusion of law and fact.5.The learned magistrate erred in law and fact in holding the appellant was 100% liable to compensate the respondent when no negligence whether vicariously or otherwise could possibly attach in light of the fact that they were not the owners of the subject motor vehicle.6.The honourable magistrate erred in law and fact in failing to determine the issue of liability as between the respondents thereby arriving at an erroneous decision.7.The honourable magistrate erred in law and in failing to consider that the evidence presented by the claimant was sufficient to sustain his claim on a balance of probability thereby arriving at an erroneous conclusion. 5.The respondent though served did not participate in the appeal. I have carefully considered the submissions filed by the appellant. This being a first appeal, the Court is duty bound to evaluate the evidence before the trial court afresh and come to its own independent findings and conclusions. (See Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA 123). 6.Before the trial court, the parties proceeded under section 30 of the Small Claims Act which provides that subject to agreement of all parties to the proceedings, the Court may determine any claim and give such orders as it considers fit and just on the basis of documents and written submissions, statements or other submissions presented to the Court. 7.It is upon this basis that the trial court proceeded to determine the suit before it. In her judgment, the trial magistrate made the following observation the basis for dismissing the appellant’s claim:“While the claimant, in his written submissions referred to a bundle of documents dated 6th May 2024 and a supplementary bundle of documents to support his claim, the court record does not include any bundle dated 6th May 2024. Instead, the CTS platform shows that the claimant filed a list of documents dated 3rd May 2024 on 6th May 2024, but without the accompanying bundle of documents.” 8.I have considered the evidence tendered before the trial court and the submissions made before me. This being an appeal from the Small Claims Court, it is important to point out that Section 38 of the Small Claims Court Act provides for the jurisdiction of this Court in determining appeals from the Small Claims Court. It provides thus; -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.” 9.It is clear from the foregoing that the jurisdiction of this Court from the Small Claims Court is only on matters of law and not factual issues. That notwithstanding, I have noted that the appellant’s grounds of appeal refer to both errors of law and fact. 10.In the case of Charles Kipkoech Leting v Express (K) Ltd & another [2018] eKLR, the Court of Appeal clarified that where a right of appeal is confined to questions of law only, an appellate court is duty bound to accept the findings of fact of the lower court and should not interfere with the decisions of the trial court on the factual issues:“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 in law.” [Emphasis added]. 11.In this appeal, the question for determination by this Court that arises from the grounds of appeal pleaded by the appellant is whether the trial court erred in law in holding that the appellant had not proved his claim against the respondents. 12.In its judgment, the trial court made a finding of fact that the appellant had not filed any bundle of documents. This was a grave error of fact as the appellant has aptly demonstrated that he had filed his documents as at the time when directions were taken to proceed under the provisions of section 30 of the Small Claims Act. It would appear that this finding was the sole basis upon which the trial court dismissed the appellant’s suit. This court is satisfied that there is sufficient cause for it to interfere with the lower court’s finding of fact with regard to the filing of documents by the appellant. The trial court’s finding in this regard is hereby set aside and substituted with a finding that the appellant had filed his documents and the same were on record and had been adopted as exhibits by consent of the parties. 13.The trial court further erred in law in failing to make a determination on the issue of liability. The claim in the lower court was instituted under the doctrine of subrogation on behalf of ICEA Lion Insurance Company Limited who had insured the claimant’s motor vehicle. 14.In his witness statement which was adopted as his evidence in chief, the appellant sated that on 7th May 2021, at around 21:29 hours, he was driving motor vehicle registration number KCU 363D along Langata road when the motor vehicle registration number KBY 425K suddenly swerved and encroached onto his lane at high speed and rammed onto the right side of his motor vehicle. He blamed the driver of KBY 425K for over speeding and failing to keep to his lane. 15.On the issue of liability, I note that the appellant’s evidence as to how the accident occurred remains unchallenged. It has not been controverted by the respondents who never called any evidence. The Court of Appeal in the case of John Wainaina Kagwe –Vs- Hussein Dairy Limited [2013] eKLR had this to say in regard to a case where the defence fails to tender evidence.“The respondent never called any witness(es) with regard to the occurrence of the accident. Even its own driver did not testify, meaning, that the allegations in its defence with regard to the blameworthiness of the accident on the appellant either wholly or substantially remained just that, mere allegations. The respondent thus never tendered any evidence to prop up its defence. Whatever the respondent gathered in cross-examination of the appellant and his witnesses could not be said to have built up its defence. As it were therefore, the respondent's defence was a mere bone with no flesh in support thereof. It did not therefore prove any of the averments in the defence that tendered to exonerate it fully from culpability.” 16.Invariably, this court hereby finds that the respondents were liable for the accident at 100%. 17.On quantum, the appellant’s claim was for a liquidated sum of Kshs. 551,489/= incurred by his insurer in the repair of his motor vehicle. The appellant produced all the relevant documents in support of the claim. These include a police abstract, a copy of motor accident report form, a copy of authority letter, assessment reports, re-inspection report invoices and payment vouchers. The court is convinced on a balance of probabilities that indeed the appellant’s insurer incurred the said cost in repairing the appellant’s motor vehicle. The appellant’s claim was therefore merited and the trial court erred in dismissing it. 18.In the end, I do hereby find and hold that the appeal herein is merited. I therefore make the following orders:a.The appeal is hereby allowed and the judgment of the lower court is hereby set aside and substituted with a judgment allowing the appellant’s claim of Kshs. 551,489/=, interest at court rate from the date of filing suit in the lower court until payment in full and costs of the suit in the lower court.b.The appellant shall also have the costs of the appeal. DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS THIS 18TH DAY OF JUNE, 2026.DAVID MBURUJUDGE