https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10743

Maleche v ABC (Minor Suing Through His Father and Next Friend BMC) (Civil Appeal E080 of 2025) [2026] KEHC 10743 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 10743 (KLR) Republic of Kenya In the High Court at Mombasa Civil Appeal E080 of 2025 EO Bitta, J July 16, 2026 Between Erick Sula Maleche Appellant and ABC (Minor Suing Through His Father and Next Friend BMC) Respondent Judgment 1.Vide a Memorandum of Appeal dated the 12th March 2025 the Appellant challenges the judgment and decree of Hon. Noelyne Akee, Senior Resident Magistrate, delivered on 12th March 2025 in Mombasa CMCC No. E220 of 2023, wherein judgment was entered in favour of the Respondent in the sum of Kshs. 208,500/= together with costs of the suit and interest at court rates. 2.The Respondent, a minor suing through his father as next friend, instituted the suit against the Appellant seeking damages arising from a road traffic accident which occurred on 25th December 2021 along the Bamburi–Mtambo Road near Bamburi Junction in Mombasa County. 3.It was alleged that motor vehicle registration number KDA 740D Nissan March, owned and/or driven by the Appellant, was negligently driven, causing it to veer off the road and knock down the Respondent, who was walking along the pedestrian lane. 4.Upon hearing the matter, the learned trial magistrate entered judgment in favour of the Respondent and awarded:a.General damages.............................Kshs. 200,000/=b.Special damages..............................Kshs. 8,500/=c.Costs of the suit.d.Interest at court rates. 5.Being dissatisfied with the whole of the judgment and decree, the Appellant preferred the present appeal. 6.The Appellant submitted that this being a first appeal, this Court is under a duty to re-evaluate and re-analyse the evidence on record and arrive at its own independent conclusions. 7.Reliance was placed on Mwanasokoni v Kenya Bus Service Ltd (1985) eKLR, where the Court held that an appellate court may interfere with findings of fact where they are based on no evidence, on a misapprehension of the evidence, or where the trial court demonstrably acted on wrong principles. 8.The Appellant contended that the learned trial magistrate failed altogether to evaluate the evidence before the court. 9.Reference was made to page 237 of the Record of Appeal, where the impugned judgment appears, and it was submitted that the learned magistrate neither analysed the evidence nor determined whether the Respondent had discharged the burden of proof. 10.The Appellant further submitted that the trial court failed to determine where the legal and evidential burdens lay and whether the Respondent had discharged them. 11.The Appellant relied on Sections 107, 108 and 109 of the Evidence Act, the decision of the court in Morris Njagi & Another v Beatrice Wanjiku Kuria (2019) eKLR, the decision of the court in Treadsetter Tyres Ltd v John Wekesa Wepukhulu (2010) and the decision of the court in East Produce Kenya Ltd v Christopher Atsiado Asiro, for the proposition that there is no liability without fault in the Kenyan legal system and that a plaintiff must prove negligence before liability can attach. 12.The Appellant submitted that the Respondent failed to discharge that burden because none of the witnesses who testified witnessed the accident. 13.According to the Appellant, the Respondent's mother was not an eyewitness, while the police officer who testified admitted that he was not the investigating officer. 14.Furthermore, the investigating officer was never called, and no police investigation file or police records were produced before the court. 15.The Appellant relied on the decision of the court in Joram Saidi Nayo & Eulian Nabalayo Sailoki (suing on behalf of the Estate of Benjamin Nayo Sailoki (Deceased)) v John Bwire, Civil Appeal No. E033 of 2022, where the Court of Appeal held that where only indirect evidence is tendered, such evidence has no probative value unless supported by additional evidence connecting it with the occurrence of the accident. 16.The Court further held that unless the plaintiff first discharges the legal burden of proof, there is nothing requiring rebuttal by the defendant. 17.The Appellant therefore submitted that no admissible direct evidence of negligence was produced and consequently the evidential burden never shifted to the Appellant. 18.The Appellant also relied on the decision of the court in Mbuthia Macharia v Annah Mutua Ndwiga & Another (2017) eKLR regarding the burden of proof. 19.The Appellant further submitted that the suit was incompetent for failure to comply with Order 32 Rule 1 of the Civil Procedure Rules. 20.The Appellant argued that although the Respondent sued through a next friend, no written authority authorising the advocate to institute the proceedings on behalf of the minor was ever signed or filed as required under Order 32 Rule 1(2), which provides that where an advocate institutes a suit on behalf of a minor, the next friend shall execute and file a written authority authorising the advocate to act. 21.The Appellant relied on the decision of the Court in DN (Suing as Father and Next Friend of SA) v Ndirangu Lydia, CFC Bank Ltd & Albanus Kioko Ndia, Civil Appeal No. 655 of 2013 (2019), where the Court held that compliance with Order 32 Rule 1 is mandatory and that failure to file the written authority deprives the next friend of legal authority to institute the proceedings. 22.The Appellant submitted that the next friend lacked locus standi and that the issue went to the jurisdiction of the court. 23.The Appellant submitted that the learned magistrate failed to consider this issue altogether despite its fundamental nature. 24.The Appellant urged the Court to allow the appeal with costs, strike out the Respondent's suit as incompetent for failure to comply with Order 32 Rule 1 of the Civil Procedure Rules, or find that liability was not proved against the Appellant. 25.In the alternative, the Appellant prayed that the award of general damages be reduced and that costs in both the appeal and the subordinate court be awarded to the Appellant. 26.The Respondent opposed the appeal and supported the judgment of the trial court. 27.The Respondent submitted that during the hearing, the Respondent adduced sufficient oral and documentary evidence demonstrating that the accident occurred as a result of the Appellant's negligence and that the learned trial magistrate properly evaluated that evidence before entering judgment. 28.The Respondent submitted that PW1 testified that on 25th December 2021 at about 6.00 p.m., he was lawfully walking along the pedestrian lane with friends on Bamburi–Mtambo Road near Bamburi Junction when motor vehicle registration number KDA 740D Nissan March, driven by the Appellant, veered off the road and struck him from behind. 29.PW1 testified regarding the circumstances of the accident, the injuries sustained and the treatment received. He also produced treatment notes in evidence. 30.The Respondent submitted that PW2, Police Constable John Ominde of Bamburi Police Station, corroborated PW1's account. 31.According to the Respondent, PW2 described the occurrence of the accident and confirmed that the Appellant's driver was to blame. 32.The Respondent submitted that PW2's testimony supported the pleaded particulars of negligence, namely excessive speed, failure to keep a proper lookout and loss of control. 33.PW3, a medical practitioner, testified regarding the injuries sustained and produced the medical report. 34.The Respondent submitted that the following documentary exhibits were produced before the trial court:a.Police Abstract;b.Treatment Notes;c.P3 Form;d.Medical Report;e.Receipts for treatment expenses;f.Receipts for medical report charges; andg.Copy of Records confirming ownership of motor vehicle KDA 740D. 35.The Respondent pointed out that although the Appellant filed a defence, no witness was called to rebut the Respondent's evidence. 36.The Respondent submitted that the plaint was expressly filed in the name of the minor through his father as next friend, thereby complying with the substantive requirements of Order 32 Rule 1(1). 37.The Respondent argued that failure to file the written authority contemplated under Order 32 Rule 1(2) was merely a procedural omission and not a jurisdictional defect. Reliance was placed on Moses Banda Daniel v Republic, Criminal Appeal No. 65 of 2015 (2016) eKLR. 38.The Respondent submitted that there had been substantial compliance with the Rules and that no prejudice whatsoever had been occasioned to the Appellant, who fully participated in the proceedings, filed a defence, cross-examined witnesses and only raised the issue in final submissions. 39.The Respondent further submitted that the omission constituted a curable procedural irregularity and that accepting the Appellant's argument would elevate technicalities over substantive justice contrary to Article 159(2)(d) of the Constitution and Sections 1A and 1B of the Civil Procedure Act. 40.The Respondent further relied on Article 53(2) of the Constitution and submitted that striking out a minor's suit on account of a curable procedural omission would be contrary to the constitutional imperative that the best interests of the child are of paramount importance. 41.The Respondent submitted that the learned magistrate was entitled to invoke the doctrine of res ipsa loquitur. 42.Reliance was placed on Nandwa v Kenya Kazi Ltd (1988) eKLR, where the Court held that the doctrine applies where the circumstances of the accident speak for themselves in the absence of any explanation from the defendant. 43.It was submitted that the unexplained veering of the Appellant's vehicle from the roadway onto a pedestrian lane constituted sufficient evidence of negligence requiring an explanation, which the Appellant failed to provide. 44.On quantum, the Respondent relied on Mbogo & Another v Shah (1968) EA 93, submitting that an appellate court ought not interfere with an award of damages unless it is demonstrated that the trial court acted on wrong principles or that the award was wholly erroneous. 45.The Respondent maintained that the award of Kshs. 200,000/= in general damages was reasonable and consistent with comparable awards for soft tissue injuries and that the special damages of Kshs. 8,500/= were specifically pleaded and strictly proved by receipts. 46.The Respondent prayed that the appeal be dismissed with costs. 47.From the pleadings, the Record of Appeal, the rival submissions and the applicable law, the following issues arise for determination: 48.Whether the Respondent's suit was incompetent for the omission of filing the next friend's written authority. 49.Whether the learned trial magistrate properly evaluated the evidence and correctly applied the principles governing the burden and standard of proof in finding the Appellant liable for the accident. 50.Whether this Court should interfere with the trial court's award of damages. 51.I will start with the first issue, that is the alleged failure by the Respondent to file a written authority to the advocate as required by Order 32 Rule 1(2) of the Civil Procedure Rules. 52.I have already set out the respective parties' position on the issue, so I will not rehash them. 53.Order 32 of the Civil Procedure Rules provides for suits by or against minors and persons of unsound mind. The relevant parts of the orders read as follows; 54.Order 32 Rule 1 (1) provides that:“Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor.” 55.Order 32 Rule 1 (2) provides that:“Before the name of any person shall be used in any action as next friend of any infant where the suit is instituted by an advocate, such person shall sign a written authority to the advocate for that purpose, and the authority shall be filed.” 56.Order 32 Rule 2 (1) provides that;“Where a suit is instituted by or on behalf of a minor without a next friend the defendant may apply to have the suit dismissed with costs to be paid by the advocate or other person by whom it was presented.” 57.Order 32 Rule 2 (2) provides that;“Notice of such application shall be given to such person, and the court, after hearing his objections (if any), may make such order in the matter as it thinks fit”. 58.The Appellant has taken the position that failure to file a written authority is a jurisdictional issue that ipso facto renders a suit filed for the benefit of a minor incompetent; I beg to differ for the following reasons. 59.The Constitution of Kenya has prescribed purposive interpretation as the country’s legal interpretive philosophy. The discernible purpose of requiring an advocate to file a written authority before filing a case in the name of a person named as next friend is to prove authorization by the next friend to act as such next friend. 60.The rule is evidential as opposed to jurisdictional. 61.Order 32 Rule 2 (2) strongly suggests that even where a suit has been filed without a next friend, the court maintains jurisdiction to make such orders in the matter as it thinks fit. 62.It is within the contemplation of Order 32 Rule 1 (2) that where a next friend institutes a suit without an advocate, the Rule does not require him/her to file a written authority in court; in fact, the Rule doesn’t apply to him/ her altogether. 63.Order 32 Rule 1 (2) provides that the written authority is by the person who is to be named as next friend and is addressed not to the court but to the advocate, who in turn is to file it in court. 64.It is therefore apparent that the purpose of Order 32 Rule 1 (2) is to provide documentary proof that the advocate has been authorized by the person named as next friend to act for the minor. 65.This position is further buttressed by a consideration of Order 32 Rule 2 (1) which provides that where a suit is instated by or on behalf of a minor without a next friend the defendant may apply to have the suit dismissed with costs to be paid by the advocate or other person by whom it was presented. 66.The purpose of the application is to allow the advocate or other person to rebut the same, after which the court has jurisdiction to make such order in the matter as it thinks fit as provided in Order 32 Rule 2 (2). 67.There is a world of difference between a situation where a written authority of a next friend has not been filed and where there is no next friend at all. 68.I can think of a scenario where the written authority was given to an advocate and the advocate failed to file it, or where, in response to an application under Order 32 Rule 2(2), the next friend subsequently confirms authorization and accepts the role notwithstanding the procedural omission; should the case be struck out? 69.I believe that would be a pedantic view of the law, militating against the interpretive compass of our constitution. 70.That said and descending from the general to the particular, in the present case, the Appellant played his cards close to the chest on the omission of filing a written authority and only sprung the issue up in his submissions in reply. 71.The Respondent has taken objection to that ambuscade; I have perused the Judgment of the trial court, which appears to have ignored the issue altogether. 72.I cannot fault the trial court for that conduct, because it would have been unjust for the court to consider an issue that was being raised for the first time after pleadings had closed, after the close of the respective parties’ cases at trial and submissions for the Respondent, who was the plaintiff in the court below, had been filed. 73.Can the issue be raised at the appellate level for the first time? I do not believe that is permissible. I say so because, as I have explained, the trial court has first instance jurisdiction to consider an application premised on failure of filing an authority to act as next friend in a suit filed for the benefit of a minor; the trial court has been granted discretion to consider the issue and only after doing so will this court exercise a supervisory jurisdiction over the same. 74.For clarity, I hold the view that the requirement for an advocate to file a written authority to act as next friend by a person named as such in a suit for the benefit of a minor is a mandatory procedural requirement under Order 32 Rule 1 (2) of the Civil Procedure Rules, an objection to any suit where no such authority has been filed by an advocate may be made by way of an application before the court and the court may upon hearing the objection either dismiss the suit or make such orders in the matter as it thinks fit. 75.The next issue is on liability of the Appellant for negligence. 76.The Supreme Court in the recent decision of Ethics and Anti-Corruption Commission & another v Aboo [2026] KESC 44 (KLR) had this to say on legal and evidential burden of proof: 67.The general principle in civil proceedings is that whoever asserts must prove. Thus, the burden of proof lies on the person alleging the existence of a set of facts. If the person adduces evidence to the satisfaction of a court on a balance of probabilities that such a set of facts exists, the burden of proving otherwise shifts to the person against whom the allegation is made. Section 107 of the Evidence Act provides as follows regarding the burden of proof:1.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 that those facts exist.2.When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 68.More specifically, Section 112 of the Evidence Act provides that in civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him. 69.In Odinga & 5 Others v Independent Electoral and Boundaries Commission & 3 Others [2013] KESC 6 (KLR), the Supreme Court had an occasion to render itself on the issue of burden of proof in electoral disputes. It stated thus:“There is, apparently, a common thread in the foregoing comparative jurisprudence on the burden of proof in election cases. Its essence is that an electoral cause is established much in the same way as a civil cause: the legal burden rests on the petitioner, but, depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting. Ultimately, of course, it falls to the court to determine whether a firm and unanswered case has been made.…..…..it behoves the person who thus alleges, to produce the necessary evidence in the first place – and thereafter, the evidential burden shifts, and keeps shifting.” 77.It is clear beyond peradventure that the Respondent had the burden of proof in establishing negligence upon the Appellant for occasioning the accident and injury to the minor. 78.What evidence did the Respondent adduce? The Respondent called three witnesses: the father and next friend to the minor, a police officer who produced the police abstract, and a medical doctor who produced the medical report. 79.It is not in dispute that the Respondent did not call any eyewitness to testify how the accident occurred. 80.The learned magistrate did not analyse the evidence at all in the judgment; one is left to speculate on how she arrived at the decision. 81.The learned magistrate stated as follows:‘..where the circumstances of the accident give rise to the inference of negligence, then the defendant to escape liability, has to show that there was a probable cause of the accident which does not connote negligence or that the accident was consistent only with the absence of negligence.” 82.The Learned Magistrate thereafter states that“…in this case, no explanation was given whatsoever as to what might have caused the accident but for the negligent acts of the defendant’s driver; liability is therefore entered at 100% against the defendant..” 83.The learned magistrate found the Appellant 100% liable. 84.I have considered the witness statements and the documents adduced before court. 85.The Respondent did not produce any direct evidence: the Respondent did not call any person who was present when the accident occurred to explain how it happened and how the Appellant was responsible. 86.No one who witnessed the accident was called to establish negligence on the part of the Appellant. 87.No circumstances were established by adducing evidence that would have demanded an explanation from the Appellant. 88.The Respondent did not discharge even the initial burden of proof to require a rebuttal from the Appellant. 89.The Appellant called the driver of the motor vehicle who gave his version of events which was not rebutted. 90.In the circumstances, I am left with no choice but to find that negligence on the part of the Appellant was not proved on the balance of probability.Consequently, the appeal succeeds, and I order as follows;A.The judgment of the court in Mombasa CMCC No. E220 of 2023 delivered on 12th March 2025 is hereby set aside and substituted with an orderB.Dismissing the suitC.Because the Respondent/Plaintiff is a minor, each party shall bear their own costs. DELIVERED VIA MICROSOFT TEAMS THIS 16TH DAY OF JULY 2026 AT MOMBASA HIGH COURTEMMANUEL BITTAJUDGE OF THE HIGH COURTDelivered in the presence of;C/A NechesahSidinyu for RespondentJengo for Appellant