ICM Spa Ltd v Chebong Company Ltd & another (Civil Appeal E128 of 2024) [2026] KEHC 9531 (KLR) (25 June 2026) (Judgment)

ICM Spa Ltd v Chebong Company Ltd & another (Civil Appeal E128 of 2024) [2026] KEHC 9531 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9531 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E128 of 2024 AN Ongeri, J June 25, 2026 Between Icm Spa Limited Appellant and Chebong Company Limited 1st Respondent John Mwangi Wangui 2nd Respondent (Being an appeal from the judgment of HON. B.A LUOVA (R.M/ADJ) in MACHAKOS SCCCOM NO. E079 of 2024 delivered on 4/4/2024) Judgment 1.The Appellant filed Machakos Small Claims Court No. E079 of 2024, seeking special damages of Ksh 401,940 together with costs and interest arising from a motor vehicle accident that occurred on 7th July 2022. 2.The Appellant alleged that its driver was operating motor vehicle registration number KCM 935Y within Konza Techno City Area when the Respondent’s authorized driver negligently controlled motor vehicle registration number KCB 338Z, a Tata lorry, which rammed into the front side of the Appellant’s vehicle, causing extensive damage. 3.Upon being served, the Respondent filed a memorandum of appearance and a response denying the claim entirely, instead particularizing negligence against the Appellant’s driver. 4.At the hearing, the Appellant’s driver did not testify due to connectivity challenges, and the Appellant’s counsel elected to proceed under Section 30 of the Small Claims Court Act. 5.The trial court relied on the driver’s witness statement which stated that he found the Respondent’s vehicle parked on the road blocking the way, that he stopped at a safe distance and hooted repeatedly without success, and that the Respondent’s vehicle suddenly reversed at high speed and hit the front of the Appellant’s vehicle. 6.The Respondent, however, testified that his vehicle had stopped because a water bowser ahead was sprinkling water and moving slowly, and that he suddenly heard a bang from being rammed from behind. 7.The trial court noted that the police witness, PC Gathi, was not the investigating officer and did not visit the scene, though the police abstract blamed the Respondent’s vehicle. 8.The trial court observed that the burden of proof rested on the Appellant and raised several unanswered questions. 9.The said questions included the gradient of the road, the absence of any evidence of mechanical failure to support a claim that the Respondent’s vehicle had stalled, and whether the Appellant’s driver had actually kept a safe distance of approximately 70 meters such that the Respondent’s vehicle would have had to reverse that entire distance to collide with the Appellant. 10.The trial court found the Respondent’s narrative more plausible, reasoning that ordinarily a vehicle does not reverse on a flat road, that the Respondent’s Tata lorry created a blind spot for the Appellant’s double cabin vehicle. 11.The trial court held that the Appellant’s driver bore the duty to keep a safe distance, with hooting alone being insufficient evasive action. 12.Consequently, the trial court held that the Appellant had failed to prove negligence on the part of the Respondent and dismissed the claim with costs. 13.The appellant appealed against the said judgment on the following grounds;i.That the learned trial Adjudicator erred in law and in fact in failing to take into account the evidence on record, hence arriving at a wrong decision on the issue of liability.ii.That the learned trial Adjudicator erred in law and in fact in failing to appreciate the weight of the evidence tendered in Court, hence erroneously finding that the Appellant had failed to discharge its burden of proof that the 2nd Respondent was liable for the accident.iii.That the learned trial Adjudicator erred in law and fact by failing to appreciate the inconsistencies in the 2nd Respondent's testimony, thereby reaching an erroneous decision.iv.That the learned trial Adjudicator erred in law and in fact by failing to apportion liability on the part of the 2nd Respondent despite the evidence produced.v.That the learned trial Adjudicator erred in law and in fact in failing to appreciate that the Appellant had tendered sufficient evidence to establish, on a balance of probabilities, that the 2nd Respondent was liable for the accident.vi.That the learned trial Adjudicator erred in law and in fact in failing to consider the Appellant's Statement of Claim and Witness statements against the weight of the evidence tendered by the Respondents.vii.That the learned trial Adjudicator erred in law and fact in failing to take into consideration submissions and authorities submitted by the Appellant, thereby arriving at an erroneous decision.viii.That the learned trial Adjudicator erred in law by misapplying the settled principles of negligence and liability, failing to properly evaluate the evidence on record, and thereby arriving at an erroneous decision that unjustly faulted and imposed liability upon the Appellant. 14.The appellant, ICM SPA Limited, submitted that they appealed against a judgment of the Small Claims Court at Machakos delivered on 4th April 2024, which dismissed its claim arising from a road traffic accident on 7th July 2022. 15.The accident involved the appellant’s stationary vehicle (KCM 935Y) and the respondents’ lorry (KCB 338Z), which the appellant claims reversed at high speed without warning and collided into its vehicle. 16.The respondents defended the claim by asserting that the appellant’s driver hit their vehicle from behind while they were stopped behind a slow-moving water bowser. 17.The trial adjudicator dismissed the appellant’s claim, finding the respondents’ version more plausible and suggesting that the appellant’s driver should have taken evasive action. 18.The appellant argues that the trial adjudicator failed to properly evaluate the evidence, particularly the police abstract and the consistent testimony of the appellant’s driver and assessor, which showed damage to the front of the appellant’s vehicle—consistent with a reversing impact. 19.The appellant submits that the adjudicator shifted the burden of proof, engaged in conjecture, and disregarded key evidence without justification, contrary to the provisions of the Evidence Act. 20.On negligence, the appellant contends that the adjudicator misapplied the law by placing primary liability on the appellant’s driver instead of on the respondent who reversed dangerously without warning. 21.The appellant maintains that it discharged its burden of proof on a balance of probabilities and that liability should have been imposed 100% against the respondents. 22.Regarding special damages of Kshs. 401,940/-, the appellant asserts that these were strictly proved through payment vouchers, assessment reports, and insurer documents, and were not disputed at trial. 23.The appellant prays that the High Court allows the appeal, sets aside the lower court’s judgment, and enter judgment in its favour for the special damages, costs of the suit in the lower court, interest, and costs of the appeal. 24.The respondents on their part submitted that the appeal should be dismissed for lack of merit, as the trial court correctly found that the appellant failed to prove negligence against the second respondent. 25.The burden of proof rested squarely on the appellant under Sections 107 and 109 of Kenya’s Evidence Act (Cap 80), which provide that whoever desires a court to give judgment on a legal right dependent on facts he asserts must prove those facts exist, and that the burden of proof on any particular fact lies on the person who wishes the court to believe in its existence. 26.The police abstract produced by the appellant was insufficient to establish negligence, as it merely proves an accident was reported to the police and does not explain how the accident occurred or who was at fault. 27.This position is supported by Florence Mutheu Musembi and Geoffrey Mutunga Kimiti (Suing as legal and personal Representatives for the Estate of Kamene Kimiti (Deceased)) v Francis Karenga [2021] KEHC 8336 (KLR), where the court stated that a police abstract is merely evidence that a report of an accident has been made to the police, and unless it contains information regarding investigations and their outcome, such evidence cannot without more be evidence of negligence. 28.Similarly, in David Mwangi Kariuki & another v Stephen Mwangi & another [2017] eKLR, the court indicated that while a police abstract proves the occurrence of an accident by giving salient details, it does not by any means prove how the accident occurred, and it was upon the respondent to call and tender credible evidence on how the accident occurred and to prove negligence on the driver's part. 29.The appellant’s driver did not testify due to connectivity challenges, and his witness statement alleging that the respondent’s driver reversed at high speed was found by the trial adjudicator to be inconsistent and implausible. 30.In contrast, the second respondent testified and adopted his witness statement, stating that he had stopped his vehicle because a water bowser ahead was sprinkling water on the road when the appellant’s driver hit his motor vehicle from behind. 31.The trial adjudicator properly interrogated the internal inconsistencies in the claimant’s version of events, particularly noting the lack of evidence on the road gradient, mechanical failure, and whether a safe distance of 70 meters had been maintained. 32.The appellant bore the legal and evidential burden to prove, on a balance of probabilities, that the second respondent reversed the lorry, that such reversing was negligent, and that the reversing caused the accident. 33.In Kirugi & Another v Kabiya & 3 Others [1987] KLR 347, the Court of Appeal held that the burden was always on the plaintiff to prove his case on the balance of probabilities even if the case was heard on formal proof. 34.Further, in Florence Mutheu Musembi and Geoffrey Mutunga Kimiti v Francis Karenga (supra), the court stated that as a general rule, the appellant had the duty of proving the facts constituting negligence on the part of the respondent even if the respondent chose to remain silent. 35.The appellant failed to demonstrate that the trial adjudicator acted on no evidence, considered irrelevant matters, or ignored relevant evidence. 36.In Wangongu v Kithinji & 2 others (Civil Appeal 293 of 2023) [2024] KEHC 6272 (KLR) (6 June 2024), the court stated that the appellant ought to prove negligence as against the first respondent independently of what the police abstract may have indicated, for the reason that proof of negligence and the police abstract are not dependent on each other, and in the absence of the appellant proving negligence, the police abstract could not be said to determine that the first respondent was to blame for the causation of the accident just because it indicated so. 37.The respondents concur with the trial adjudicator’s holding that the appellant failed to discharge the burden of proof as to the occurrence of the accident and proof of the particulars of negligence against the respondent’s driver. 38.Regarding apportionment of liability, the respondents submit that apportionment can only arise after negligence has been established, and since the court correctly found that negligence was not proved against the respondents, the trial adjudicator had no legal basis upon which to apportion liability. 39.In Mbogo and Another v Shah [1968] EA 93, the court stated that an appellate court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong because it has misdirected itself or because it has acted on matters on which it should not have acted. 40.On the principles of negligence and liability, the respondents cite Treadsetters Tyres Ltd v John Wekesa Wepukhulu [2010] eKLR, where Ibrahim J (as he then was) cited Charlesworth & Percy on Negligence, 9th Edition at page 387, stating that in an action for negligence, the burden of proof falls upon the plaintiff alleging it to establish each element of the tort, and it is for the plaintiff to adduce evidence of the facts on which he bases his claim for damages, after which two questions arise: whether on that evidence negligence may be reasonably inferred, and whether, assuming it may be reasonably inferred, negligence is in fact inferred. 41.The respondents submitted that the plaintiff failed to prove his case of negligence on a balance of probabilities since the factor of causation has not been proved and the court cannot automatically assume that the defendant is liable in negligence. 42.In V.O.W. v Private Safari EA Ltd [2010] eKLR, the learned Judge H.M. Okwengu in disallowing the appeal stated that there was no evidence upon which a finding of negligence against the appellant’s driver could be arrived at, and that it was not for the respondent to prove that he was not negligent but for the appellant to discharge that burden, noting that an accident can be caused by many fact 43.The respondents finally submitted that the trial court correctly applied the principles governing negligence and burden of proof, and that the appellant has not proved any of the grounds in the Amended Memorandum of Appeal dated 15th December 2025. They urge the court to dismiss the appeal with costs to the respondents. 44.As a preliminary and dispositive matter, this court must first address whether an appeal from the Small Claims Court properly lies to the High Court. 45.The law is clear: Section 38(1) of the Small Claims Court Act provides that“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." 46.This court’s jurisdiction is therefore statutorily confined to the consideration of matters of law only, as distinct from matters of fact. 47.The duty of the High Court in such appeals is circumscribed; it must defer to the findings of fact of the Adjudicator and analyse the matter purely for issues of law. 48.A matter of law is concerned with the application of legal principles to the factual circumstances of the case, and includes circumstances where the trial court considered matters it should not have considered, or failed to consider matters it should have considered, or where its decision is so perverse that no reasonable tribunal could have reached it. 49.Having carefully examined the appellant's Memorandum of Appeal, it is evident that the grounds raised transcend mere factual disputes. 50.The appellant contends that the trial Adjudicator misapplied the settled principles of negligence and the burden of proof, failed to appreciate the weight of the evidence tendered, and disregarded key evidence including the police abstract. 51.These are properly matters of law, as they challenge the legal framework within which the Adjudicator evaluated the evidence and reached a determination. 52.The appellant’s assertion that the Adjudicator shifted the burden of proof and misdirected herself on the law of negligence invites this court to intervene on points of law. 53.Consequently, this court finds that the appeal is competent and lies properly before it. Having established jurisdiction, this court will now proceed to determine the appeal on its merits. 54.The issues for determination in this appeal are as follows;i.Whether the trial Adjudicator erred in law by misdirecting herself on the burden of proof and the principles of negligence,ii.Whether the trial Adjudicator was entitled to rely on the evidence of the respondent’s driver while discounting the appellant’s documentary evidence,iii.Whether based on the evidence on record, the appellant discharged its burden of proving negligence against the respondent on a balance of probabilities. 55.The applicable law as to the burden of proof is found in Sections 107, 108 and 109 of the Evidence Act, Cap 80 Laws of Kenya. Section 107(1) provides that“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." 56.This is the legal burden of proof, which rests squarely on the party who asserts the affirmative of the issue. 57.Section 109 further provides that“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence." 58.In the context of a claim for negligence arising from a road traffic accident, the legal and evidential burden rests on the claimant, in this case the appellant, to prove on a balance of probabilities that the respondent’s driver was negligent and that such negligence caused the accident. 59.The enduring principle is that there is no liability without fault in the Kenyan legal system, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence. 60.The mere occurrence of an accident is not, in itself, proof of negligence; some form of negligence must be established against the alleged tortfeasor. 61.In the present case, the trial Adjudicator dismissed the appellant’s claim because she found that the appellant had failed to discharge this burden. 62.The appellant’s case was that its driver was operating motor vehicle registration number KCM 935Y within Konza Techno City Area when the respondent’s driver negligently controlled motor vehicle registration number KCB 338Z, a Tata lorry, which reversed at high speed and rammed into the front side of the appellant’s vehicle. 63.The appellant’s driver did not testify due to connectivity challenges, and counsel elected to proceed under Section 30 of the Small Claims Court Act, which permits matters to be determined on the basis of documents and witness statements without oral testimony. 64.The trial court relied on the driver’s witness statement, which stated that he found the respondent’s vehicle parked on the road blocking the way, that he stopped at a safe distance and hooted repeatedly without success, and that the respondent’s vehicle suddenly reversed at high speed and hit the front of the appellant’s vehicle. 65.In contrast, the respondent testified and adopted his witness statement, stating that his vehicle had stopped because a water bowser ahead was sprinkling water and moving slowly, and that he suddenly heard a bang from being rammed from behind. 66.The trial Adjudicator found the respondent’s narrative more plausible, reasoning that ordinarily a vehicle does not reverse on a flat road, and noted several unanswered questions. 67.The questions included the gradient of the road, the absence of any evidence of mechanical failure to support a claim that the respondent’s vehicle had stalled, and whether the appellant’s driver had actually kept a safe distance such that the respondent’s vehicle would have had to reverse a considerable distance to collide with the appellant. 68.The Adjudicator held that the appellant’s driver bore the duty to keep a safe distance, and that hooting alone was insufficient evasive action. 69.The appellant contends that the Adjudicator shifted the burden of proof and disregarded key evidence, particularly the police abstract which blamed the respondent’s vehicle, as well as the consistent testimony of the appellant’s driver and assessor which showed damage to the front of the appellant’s vehicle consistent with a reversing impact. 70.This court finds that the trial Adjudicator erred in law in her approach to the evaluation of evidence and the burden of proof. 71.While it is trite law that the burden of proof rests on the claimant, the trial court must properly consider all the evidence tendered and apply the correct standard of proof, namely the balance of probabilities. 72.The standard of proof in civil liability claims is that of the balance of probabilities, meaning that the court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. 73.In percentage terms, a party who establishes a case to a percentage of 51% as opposed to 49% of the opposing party is said to have established the case on a balance of probabilities. 74.The trial Adjudicator in this case appears to have placed a heavy evidential burden on the appellant, requiring it to disprove every possible alternative explanation, including the gradient of the road and the absence of mechanical failure, before the respondent’s negligence could be inferred. 75.This was a misdirection. The appellant was not required to prove its case beyond any shadow of doubt, nor was it required to eliminate all hypothetical scenarios inconsistent with its case. 76.It was required only to demonstrate that, on the evidence, it was more probable than not that the respondent’s driver reversed negligently and caused the accident. 77.Furthermore, the trial Adjudicator erred in law by failing to appreciate the proper evidentiary value of the police abstract. 78.The police abstract produced by the appellant indicated that the respondent’s vehicle was to blame for the accident. 79.While it is settled law that a police abstract is not conclusive proof of negligence and does not, on its own, establish liability, it is nevertheless a public document prepared in the ordinary course of police duties and is admissible as evidence of the facts recorded therein. 80.A police abstract is a public document extracted from police records following investigations into liability and negligence, and it informs the decision as to whom is to blame for the accident. 81.In the present case, the respondent did not produce any alternative police abstract or any documentary evidence to controvert the appellant’s abstract. 82.The respondent merely testified to a different version of events. The trial Adjudicator was entitled to consider the abstract alongside other evidence, but she was not entitled to disregard it entirely or to subject it to a higher standard of scrutiny than the law requires. 83.The abstract, together with the witness statement of the appellant’s driver and the evidence of damage to the front of the appellant’s vehicle, constituted prima facie evidence of negligence on the part of the respondent’s driver. 84.The burden then shifted, evidentially, to the respondent to adduce credible evidence to rebut that prima facie case. 85.While the legal burden of proof never shifts from the claimant, the evidential burden may shift depending on the strength of the evidence adduced. 86.This court also finds that the trial Adjudicator erred in law by failing to properly evaluate the inherent probabilities of the competing versions of events 87.The trial Adjudicator also misdirected herself by placing undue reliance on the absence of evidence of mechanical failure to explain why the respondent’s vehicle was stationary. 88.The respondent’s own testimony was that he stopped because a water bowser ahead was sprinkling water and moving slowly. 89.He did not claim that his vehicle had stalled or suffered mechanical failure. The question of mechanical failure was therefore irrelevant to the respondent’s version of events. 90.The only relevance of mechanical failure would be to the appellant’s version, which alleged that the respondent’s vehicle was parked on the road blocking the way. 91.The appellant’s driver stated that he found the respondent’s vehicle parked on the road, which implies that it was stationary for some reason, but the appellant did not need to prove why it was parked; it only needed to prove that it reversed negligently. 92.The trial court’s focus on mechanical failure was therefore a distraction from the central issue as to whether the respondent’s vehicle reversed or whether the appellant’s vehicle drove into it. 93.In light of the foregoing, this court finds that the trial Adjudicator’s decision was clearly wrong because she misdirected herself on the burden of proof, failed to properly evaluate the evidence on record, and acted on matters she should not have considered while failing to consider matters she should have considered. 94.The decision is so perverse that no reasonable tribunal, properly directing itself on the law, could have reached it. 95.The appellant did discharge its burden of proof on a balance of probabilities. The evidence of the appellant’s driver, though untested by cross-examination due to the election to proceed under Section 30 of the Small Claims Court Act, was not inherently incredible. 96.The respondent’s version, which the trial court found more plausible, is not supported by any documentary evidence and contains its own inherent improbabilities. 97.The police abstract, which is a public document, blamed the respondent’s vehicle. The respondent did not adduce any evidence to challenge the authenticity or accuracy of the abstract. 98.In these circumstances, the finding that the appellant failed to prove negligence cannot stand. 99.Accordingly, this appeal is allowed. The judgment of the Small Claims Court at Machakos in Claim No. E079 of 2024 delivered on 4th April 2024 is hereby set aside in its entirety. 100.This court substitutes therefor a judgment in favour of the appellant against the respondent for the sum of Kshs 401,940 being the special damages proved, together with interest at court rates from the date of filing the claim in the Small Claims Court until payment in full. 101.The appellant shall also have the costs of the suit in the Small Claims Court and the costs of this appeal. 102.Orders to issue accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 25TH DAY OF JUNE 2026ASENATH ONGERIJUDGEIn the presence ofMuriungi for the AppellantNo appearance for the RespondentsChrispin - Court Assistant