https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9764

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA MACHAKOS** **HCCA E322 OF 2023** **FLORENCE MUNYIVA KILINDA …………….….…..APPELLANT** **VERSUS** **CATHOLIC DIOCESE OF KITUI….……………..…..RESPONDENT** (*Being an appeal from the judgment of HON. M. THIBARU (RM/ADJ) in MACHAKOS SCCC NO. E613 of 2023 delivered on20/11/2023*). **JUDGMENT** 1. This appeal arose from a claim filed by the appellant at the Small Claims Court at Machakos, where she sought damages for injuries sustained after being hit by a motor vehicle belonging to the respondent on 23rd June 2023 along the Machakos-Kitui road. 2. The appellant alleged that the respondent’s driver had negligently controlled the vehicle, causing it to veer off the road and strike her as she was standing off the road. 3. The respondent denied the occurrence of the accident and contended that if it did happen, it was caused by the appellant’s own negligence. 4. During the trial before the trial court, the appellant gave evidence and called a police officer who produced a police abstract, but the officer was not the investigating officer and could not testify to the circumstances of the accident. 5. The respondent did not call any witnesses but produced a medical report. The trial court framed two issues for determination, namely liability and quantum. 6. On liability, the trial court noted that the appellant stated in cross-examination that it was dark at the time of the accident and that she could not remember who told her about the vehicle’s registration number. 7. The police abstract produced indicated that the matter was pending investigations, and no investigating officer testified, nor were any investigation reports or diaries produced. 8. The trial court applied the principle from **Charterhouse Bank Limited (Under Statutory Management) v Frank N. Kamau [2016] eKLR,** which held that where a defendant fails to adduce evidence, the plaintiff must still present credible and believable evidence that can stand on its own, and judgment cannot be entered merely because the defendant did not testify. 9. The trial court further relied on **Peter Kanithi Kimunya v Aden Guyo Haro [2014] eKLR** for the proposition that a police abstract is not proof of the occurrence of an accident but only of the fact that an accident was reported. 10. Applying sections 109 and 112 of the Evidence Act, Cap 80, as discussed in **Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334,** the trial court found that the appellant bore the burden of proving her case and that she had failed to adduce sufficient evidence, as her testimony was hearsay and uncorroborated, and no eye witness or investigating officer was called to shed light on the accident. 11. Consequently, the trial court held that the appellant had not proved her case on a balance of probabilities and dismissed the suit. 12. On quantum, the trial court proceeded to assess damages hypothetically, noting that the medical report showed blunt injuries to the neck, chest, abdomen, upper limbs, and a fracture of the fibula. 13. It considered the case of **Daniel Otieno Owino & another v Elizabeth Atieno Owuor [2020] eKLR,** where the High Court reduced an award for similar injuries from Kshs. 600,000 to Kshs. 400,000, and opined that an award of Kshs. 500,000 would have been sufficient for general damages had the claim succeeded. 14. However, no award was made for special damages because the receipts attached were illegible. 15. The trial court thus entered judgment dismissing the suit with costs to the respondent and granted a 30-day stay of execution. 16. The appellant has appealed against the said judgment on the following grounds; 17. THAT the learned magistrate erred in fact and in law by failing to consider the evidence of the claimant during trial, leading to an erroneous conclusion that she did not prove her case to the required standard and thus dismissing her claim. 18. THAT the learned magistrate erred in law and in fact by disregarding the claimant's witnesses, particularly the police officer, and dismissing her claim solely on the ground that the police officer was not the investigating officer. 19. THAT the learned magistrate erred in law and in fact by disregarding the principles of law guiding the small claims court, including fairness of process and simplicity of procedure, by requiring the strict attendance of an eye witness and the investigating officer, thus dismissing the claim. 20. THAT the learned magistrate erred in fact and in law by failing to appreciate that the claimant proved her claim on a balance of probabilities, which was uncontested by the respondent and therefore remains uncontroverted. 21. THAT the learned magistrate erred in law and in fact by failing to consider and/or completely disregarding the defendant's submissions on liability, hence reaching an erroneous conclusion that the claimant did not prove her case to the required standard. 22. THAT the learned magistrate erred and misdirected herself in fact and in law by assessing general damages awardable to the appellant at a level that was manifestly too low in the circumstances, and thus failed to appreciate the principles applicable in the assessment of damages. 23. THAT the learned magistrate erred in law and in fact by failing to apply the principle applicable in the award of damages of comparable awards made for analogous injuries, and by failing to consider the authorities cited by the appellant on the issue of quantum. 24. The parties filed written submissions in the appeal as follows; The appellant submitted that this is an appeal filed on 13/12/2023 against the decision of the Small Claims Court at Machakos, delivered on 20/11/2023 in Machakos SCC No. E613 of 2023, between Florence Munyiva Kilinda and the Catholic Diocese of Kitui. 25. The appeal is brought under Section 38 of the Small Claims Court Act, which grants the High Court jurisdiction to hear and determine appeals on matters of law only, and Section 38(2) provides that such an appeal is final. 26. The appellant filed an amended Memorandum of Appeal with leave of court granted on 29/01/2025, as contained in the supplementary Record of Appeal dated 12/02/2025. 27. The appellant submits that the appeal falls within the ambit of Section 38 of the Act because it challenges the adjudicator’s failure to properly consider and evaluate the evidence, which constitutes a matter of law. 28. As settled in **Peter Gichuki King'ara v IEBC & 2 Others, Nyeri Civil Appeal No. 31 of 2013 (Court of Appeal),** it was held that the question of whether a trial judge properly considered and evaluated the evidence and arrived at a correct determination supported by law is an issue of law. 29. The appellant contends that the trial adjudicator misdirected herself in law by finding that the plaintiff's failure to call an eyewitness defeated her claim on liability, which is a clear misapplication or ignorance of Section 32 of the Small Claims Court Act. 30. Section 32 of the Act provides that the court shall not be bound wholly by the rules of evidence, and may admit any oral or written testimony, record, or other material that it considers credible or trustworthy, even if such evidence would be inadmissible in other courts under the law of evidence. 31. Further, that evidence need not be given on oath unless the court so requires and that the court may on its own initiative seek and receive other evidence and make investigations; and all such evidence must be disclosed to the parties. 32. The appellant gave oral evidence in court, and her documents, including the police abstract, were produced by consent and were not contested by the respondent, who called no oral evidence or contrary evidence to challenge the appellant’s case. 33. The adjudicator dismissed the claim primarily because the police officer who attended court was not the investigating officer and the matter was pending investigation, and because no eyewitness was called, which the appellant submits is an erroneous requirement in law. 34. The unchallenged evidence of the claimant, adopted as her testimony, was clear that she was hit by motor cycle registration No. KMFE 801Q while standing off the road, and no evidence to the contrary was adduced by the respondent. 35. While the adjudicator stated that a police abstract is not proof of an accident but only proof that a report was made, the appellant argues that this ignores the evidence on record, including the claimant’s testimony and the respondent’s own filed documents, such as the police abstract and motor accident report form containing the driver’s statement, which confirm the occurrence of the accident. 36. By virtue of Section 32(2) of the Small Claims Court Act, the court should not have disregarded the respondent’s own documents, and the claimant’s sworn evidence was more weighty, tilting the balance of probabilities in her favour. 37. Further, if the court required more clarification, it was clothed with powers under Section 32(3) of the Act to call the driver’s statement from the motor accident claim form to be given on oath, either orally or in writing, but it failed to do so. 38. The appellant’s evidence and documents remained uncontroverted, and the trial court should therefore have found for the claimant on liability, relying on the principle in **John Wainaina Kagwe v Hussein Dairy Ltd [2013] eKLR**, where it was held that a defendant who tenders no evidence to prove its defence leaves the plaintiff’s evidence unchallenged. 39. The respondent pleaded negligence against the claimant but called no evidence to substantiate that plea, and the appellant cites **Peter Ngigi & Another (Suing as the legal representative of the estate of Joan Wambui Ngigi) v Thomas Ondiki Odour & Another [2019] eKLR**, where it was held that uncontroverted evidence bears a lot of weight and a statement of defence without supporting evidence amounts to mere statements. 40. The appellant also relies on **North End Trading Company Limited (Carrying on the Business under the Registered Name of Kenya Refuse Handlers Limited) v City Council of Nairobi [2019] eKLR,** where the court held that where a defendant does not adduce evidence, the plaintiff’s evidence is to be believed, as allegations in the defence are not evidence, citing **Edward Muriga Through Stanley Muriga v Nathaniel D. Schuter, Civil Appeal No. 23 of 1997.** 41. The appellant draws attention to the similar case of **Precious Amani v Daniel Kyalo Kioko, Machakos HCCA No. E284 of 2023,** where the High Court held that the trial court erred in relying only on the police abstract to find that negligence was not proved, and that the respondent’s failure to call any witness meant the contents of the response remained mere allegations. 42. In that case, the court reiterated that where a party fails to call evidence, the pleadings remain unsubstantiated and of no probative value, and the claimant is taken to have proved the case on a balance of probability in the absence of the respondent’s evidence. 43. The appellant challenges the trial court’s estimate of general damages, submitting that the sum of Kshs. 500,000 that the court would have awarded is too low, and urges the court to find that Kshs. 900,000 is a fair and reasonable award, relying on her trial submissions. 44. The appellant also challenges the trial court’s finding on special damages, arguing that the receipts for the medical report and copy of records totaling Kshs. 5,550 are legible, and only the receipt for the P3 form was illegible, so the court should award Kshs. 5,550. 45. In conclusion, the appellant prays that the appeal be allowed with costs, that the judgment of the trial court be set aside in its entirety, that the respondent be found fully liable for the accident, and that damages be assessed as prayed, together with costs of the lower court. 46. The respondent submitted that the appellant failed to prove her case because she was knocked down at night, lost consciousness, and was unable to see the events leading to the accident. 47. The Police Officer called as PW2 produced a Police Abstract but failed to produce an Occurrence Book extract. 48. A police abstract is merely evidence that an accident was reported, not proof that an accident occurred, as held in **ZOS & CAO (Suing as the Legal Representatives in the Estate of SAO (Deceased) v Amollo Stephen [2019] eKLR.** 49. A police abstract is an abridged version of the OB, and the OB is the official document showing the incident, parties involved, and police action, as per **Margaret Wambui Thidigwa v Eliud Sidigu Otiato [2021] eKLR.** 50. The Police Officer was not the investigating officer, did not visit the scene, and his testimony was based on second-hand information from the abstract, making it hearsay and inadmissible under Section 63(1) and (2) of the Evidence Act. 51. Hearsay evidence is inadmissible, as elaborated in **Kinyatti v Republic [1984] eKLR.** 52. The appellant failed to call an eyewitness or the investigating officer to corroborate her testimony or explain the accident circumstances. 53. A police abstract is not conclusive proof of liability in the absence of supporting evidence, as held in **Kennedy Nyangoya v Bash Hauliers (2016) eKLR.** 54. The burden of proof lies on the person who wishes the court to believe in a fact's existence under Sections 109 and 112 of the Evidence Act. 55. The appellant failed to discharge her burden of proof, as held in **Evans Nyakwana v Cleophas Bwana Ogaro [2015] eKLR.** 56. The trial adjudicator did not err in dismissing the suit because the appellant had to adduce evidence that, in the absence of rebuttal, would convince the court on a balance of probabilities. 57. The burden of proof would only have shifted to the respondent if the appellant had established a prima facie case, which she did not, as per **Charterhouse Bank Limited (Under Statutory Management) v Frank N. Kamau [2016] eKLR.** 58. In the event the appeal succeeds, the respondent proposes an award of Kshs. 400,000 for general damages. 59. Comparable injuries should be compensated by comparable awards, as per **Alphonce Odero Augo v Sinohydro Corporation Limited [2017] eKLR and Stanley Maore v Geoffrey Mwenda [2004] eKLR.** 60. In **Daniel Otieno Owino & another v Elizabeth Atieno Owuor [2020] eKLR**, the High Court awarded Kshs. 400,000 for injuries including fracture of the tibia and fibula. 61. In **Savanna International Ltd v Muka (Civil Appeal 31 of 2018) [2022] KEHC 675 (KLR),** the High Court awarded Kshs. 400,000 for fracture of the medial malleolus and severe soft tissue injury. 62. Damages are meant to indemnify the victim, not punish the tortfeasor, as stated in **FM (Minor suing through Mother and Next Friend MVM) v JNM & Another [2020] eKLR** and **Lim v Camden HA [1980] AC 174.** 63. Special damages must be specifically pleaded and strictly proved, as per **Rukia Abdi Manya & Another v Officer Commanding Police Station Habaswein & Another [2020] eKLR.** 64. The appellant pleaded Kshs. 7,100 in special damages, but only Kshs. 550 for the motor vehicle search was proved with receipts. 65. The claims for Kshs. 6,550 for the Medical Report and P3 Form were not substantiated with legible documentary evidence and therefore cannot be awarded. 66. Only Kshs. 550 should be awarded as special damages, subject to liability. 67. Costs follow the event under Section 27(1) of the Civil Procedure Act, as stated in **Elite System Ltd v HFC Limited; Hassan Zubeid & 2 others (Interested Parties) [2019] eKLR.** 68. The respondent prays that the appeal be dismissed with costs to the respondent. 69. This Court has carefully considered the Record of Appeal, the grounds of appeal, and the written submissions filed by both parties. 70. The issues for determination in this appeal are as follows; 71. ***Whether this appeal lies to the High Court under Section 38 of the Small Claims Court Act;*** 72. ***Whether the trial adjudicator erred in law in dismissing the appellant's claim on liability; and*** 73. ***Whether the award of damages was legally sound****.* 74. On the first issue, the appeal lies to the High Court on matters of law only as provided under Section 38(1) of the Small Claims Court Act. 75. A court hearing an appeal on matters of law determines whether the lower court considered matters it should not have considered, failed to consider matters it should have considered, or rendered a perverse decision. 76. The question of whether a trial court properly considered and evaluated evidence and arrived at a correct determination supported by law is an issue of law. 77. The appellant's grounds challenge the trial court's failure to properly evaluate evidence and apply correct legal principles, which are matters of law. 78. This Court therefore has jurisdiction to hear this appeal. 79. On the second issue, the Court finds that the trial adjudicator erred in law by applying a standard of proof that was too stringent and contrary to the procedural flexibility mandated by the Small Claims Court Act. 80. Section 32(1) of the Small Claims Court Act provides that the Court shall not be bound wholly by the rules of evidence. 81. Section 32(2) empowers the Court to admit any oral or written testimony, record, or other material that it considers credible or trustworthy, even if such evidence would be inadmissible under the general law of evidence. 82. The appellant gave sworn testimony that she was standing off the road when she was hit by the respondent's motor vehicle. 83. The police abstract, which was produced by consent, confirmed that the accident was reported. 84. The respondent, despite filing a defence, called no witnesses to rebut the appellant's testimony. 85. The Court of Appeal in **Charterhouse Bank Ltd v Frank N. Kamau [2016] eKLR** held that where a defendant fails to adduce evidence, the plaintiff must still present credible evidence that can stand on its own, but the defendant's failure to call evidence means the defence allegations remain mere statements. 86. The appellant's testimony was not challenged, and no evidence of contributory negligence was tendered by the respondent. 87. The trial adjudicator's insistence on an investigating officer or an eyewitness to corroborate the appellant's evidence was a misdirection that elevated the standard of proof beyond the balance of probabilities required in civil cases. 88. In **Peter Kanithi Kimunya v Aden Guyo Haro [2014] eKLR**, the High Court held that a police abstract is not proof of the occurrence of an accident but of the fact that an accident was reported; however, the absence of an investigating officer does not negate the plaintiff's evidence. 89. The Court further held that requiring production of a police abstract or other documents as a prerequisite to proving an accident would be applying the higher criminal standard of proof beyond reasonable doubt rather than the civil standard of balance of probabilities. 90. The appellant's testimony, combined with the police abstract and the medical report confirming injuries consistent with a road accident, established her case on a balance of probabilities. 91. The respondent's failure to adduce evidence left the appellant's case uncontroverted, and the trial court erred by failing to give due weight to the appellant's sworn testimony. 92. On the quantum of damages, the trial adjudicator assessed Kshs. 500,000 for general damages had the claim succeeded. 93. The appellant sustained blunt injuries to the neck, chest, abdomen, and upper limbs, and a fracture of the fibula. In **Daniel Otieno Owino & another v Elizabeth Atieno Owuor [2020] eKLR,** the High Court awarded Kshs. 400,000 for similar injuries including fracture of the tibia and fibula. 94. The Court finds that the sum of Kshs. 500,000 assessed by the trial court was reasonable and within the range of comparable awards. 95. On special damages, the appellant claimed Kshs. 7,100 but only the receipt for the motor vehicle search at Kshs. 550 is legible and properly proved. 96. The Court agrees with the trial court that special damages must be strictly proved as required by law, and only Kshs. 550 is recoverable. 97. For these reasons, the Court makes orders as follows; 98. ***THAT the appeal be and is hereby allowed,*** 99. ***THAT the judgment of the Small Claims Court delivered on 20th November 2023 in Machakos SCCC No. E613 of 2023 be and is hereby set aside,*** 100. ***THAT judgment be and is hereby entered for the appellant against the respondent for Kshs. 500,000 in general damages plus Kshs. 550 in special damages, totaling Kshs. 500,550, with interest at court rates from the date of the judgment of the lower court until payment in full*.** 101. The appellant shall also have costs of this appeal and the costs in the lower court. 102. Orders to issue accordingly. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 25TH DAY OF JUNE 2026** **ASENATH N. ONGERI** **JUDGE** **In the presence of** Mrs Omari holding brief for Mr Muriungi for the Appellant No appearance for the Respondent Chrispin - Court Assistant