https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8495

Kahindo v Muriithi & another (Civil Appeal E782 of 2024) [2026] KEHC 8495 (KLR) (Civ) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 8495 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E782 of 2024 AC Mrima, J May 22, 2026 Between Isaac Waitaka Kahindo Appellant and Anthony Waweru Muriithi 1st Respondent Boniface Kamau 2nd Respondent (Being an appeal from the Judgment of Hon. D.S. Aswani in Nairobi [Milimani] Small Claims Court Civil Case No. E4517 of 2023 delivered on 23 rd February 2024) Judgment Background: 1.The dispute before this Court originates from the decision of the Nairobi [Milimani] Small Claims Court Claim No. E4517 of 2023 [hereinafter referred to as ‘the suit’] wherein the Appellant, Isaac Waithaka Kahindo, sought compensation from Anthony Waweru Muriithi and Boniface Kamau the 1st and 2nd Respondents herein respectively, for bodily injuries resulting from a road traffic accident that occurred on the 17th June 2023 along Waiyaki Way. The Appellant claimed that he was a pedestrian when the Respondents’ motor vehicle registration number KDK 106L, knocked him down. 2.In its judgment, the trial Court held that while the Appellant had proved the occurrence of the accident, there was no sufficient evidence adduced to prove negligence on the part of the Respondents. The suit was subsequently dismissed, hence, this appeal. 3.Whereas the Respondents filed a Response to the Statement of Claim at the trial Court where they denied liability and attributed 100% contributory negligence to the Appellant for allegedly failing to keep to the sidewalk, the neither filed any submissions nor participated in the hearing of this appeal. Nevertheless, this Court is legally duty bound to consider the appeal. The Appeal: 4.Through a Memorandum of Appeal dated the 1st July 2024, the Appellant preferred the following grounds of appeal: -1.The Learned Magistrate erred in Law and in Fact in failing to appreciate the relevant Principles, case law and the submissions on record and thereby failing to find the respondents liable.2.The Learned trial Magistrate misdirected herself and failed to give any due and proper consideration to the pleadings and evidence on record and submissions and thereby made an erroneous judgment in dismissing the suit 5.In his written submissions dated 14th November 2025, the Appellant claimed that the trial Court erred in its finding that negligence was not proved on a balance of probabilities. He contended that the uncontroverted Police Abstract and his own witness statement were sufficient to establish 100% liability against the Respondents. Relying on the High Court decision in Mary Njeri Murigi -vs- Peter Macharia & another [2016] eKLR, the Appellant submitted that in the absence of rebuttal evidence, a police abstract is sufficient to prove a claim on a balance of probabilities. He further leaned on the authority to argue that pedestrians have equal rights to the road and that motorists bear a strict duty of care. 6.On the applicable standard of proof, the Appellant cited the decision in Fredrick Odongo Otieno -vs- Husnain Motors Limited [2020] eKLR, emphasizing that civil matters only require proof on a balance of probabilities, not beyond reasonable doubt. 7.To invite this Court’s intervention, the Appellant cited the Court of Appeal in Said Sweilem Gheithan Saanum -vs- Commissioner of Lands & 5 others [2015] eKLR, arguing that an appellate Court can interfere with a trial Court’s discretion if the Judge misapprehended facts or failed to take into account relevant considerations. 8.Finally, on quantum, the Appellant submitted that an award of Kshs. 500,000/= for general damages would be commensurate with the severe harm of a dislocated shoulder, drawing parity with the Kshs. 600,000/= awarded in Platinum Credit Ltd & another -vs- Erick Oloo Okello [2022] eKLR. 9.The Appellant prayed that the appeal be accordingly allowed. Analysis and Determination: 10.Having carefully perused the pleadings, the record of appeal, the trial Court’s judgment, and the Appellant’s submissions, this Court frames the following issues for determination: -i.Whether the appeal is competent in light of Section 38(1) of the Small Claims Court Act.ii.Whether the requisite burden of proof was attained in the suit. 11.A consideration of the appeal now follows. (a) Whether the appeal is competent in light of Section 38(1) of the Small Claims Court Act: 12.The jurisdiction of this Court to entertain appeals from the Small Claims Court is strictly circumscribed by Section 38 of the Small Claims Court Act and are limited to matters of law and the appeal is final. 13.Whereas there has been no universally accepted definition of the term ‘matters of law’, there has been some working definitions thereto. The term ‘point of law’ may also be referred to as ‘matter of law’. The Black’s Law Dictionary defines ‘a matter of fact’ and ‘a matter of law’ 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. 14.Lord Denning, J in Bracegirdle vs. Oxley (2) [1947] 1 ALL E.R. 126 at p 130 in espousing the two terms had the following to say: -…. 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. 15.Drawing from the above, the Court of Appeal in Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others [2014] eKLR sated as under: -…. That reasoning has been adopted in this jurisdiction. In A.G. Vs. DAVID MURAKARU [1960] EA 484, for instance, Chief Justice Ronald Sinclair sitting with Rudd J. adverted to the factual foundations of legal questions by stating that an appellate court restricted to determining questions of law may yet quite properly interfere with the conclusion of a lower court if the same is erroneous in point of law. This is the case where that lower court arrives at a conclusion on the primary facts that it could not reasonably come to. Such a conclusion or decision becomes an error in point of law. See also PATEL vs. UGANDA [1966] EA 311 and SHAH Vs. AGUTO [1970] EA 263. 16.Earlier, the Court of Appeal in M’riungu and Others -vs- R [1982-88] 1 KAR 360 observed thus: -…. 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. 17.Later, the Court of Appeal in Charles Kipkoech Leting -vs- Express (K) Ltd & another [2018] eKLR discussed what entails matters of laws as the Court considered its role as a second appellate Court. It observed thus;…. Our mandate is as has been enunciated in a long line of cases decided by the Court. See Maina -vs- Mugiria [1983] KLR 78, Kenya Breweries Ltd v Godfrey Odongo, Civil Appeal No. 127 of 2007, and Stanley N. Muriithi & another v Bernard Munene Ithiga [2016] eKLR, for the holdings inter alia that, on a second appeal, the Court confines itself to matters of law only, unless it is shown that the Courts below considered matters, they should not have considered or failed to consider matters they should have considered or, looking at the entire decision, it is perverse….. 18.And, in Peter Gichuki King'ara vs. IEBC & 2 others, Nyeri Civil Appeal No. 31 of 2013, Court of Appeal held that a decision challenged on the basis of wrongful exercise of discretion raises a point of law. [See also Twaher Abdulkarim Mohamed v Independent Electoral and Boundaries Commission (IEBC) & 2 others, (2014) eKLR]. 19.From the foregoing, an appeal on matters of law calls upon the appellate Court to steer clear of findings of fact derived from primary evidence and to also restrain itself from treating findings of fact as holdings of law or mixed findings of fact and law unless the findings are so perverse as to defeat the object of justice. 20.In discharging its appellate role in matters from the Small Claims Court, the High Court should remain alive to the rationale behind the establishment of the Small Claims Court as a special and unique Court which is different from the mainstream civil Courts. It must always be remembered that the focal point of the Small Claims Courts is expeditious disposal of cases and that is why the Court is not bound by the strict rules of evidence [Section 32 of the Small Claims Court Act] and further the Court has power to control of its own procedure in determining any claim before it subject to regard to the principles of natural justice [Section 17 of the Act]. The High Court, therefore, is duty-bound to assist the Small Claims Court realize it’s said objective and it ought to consider appeals from the said Court through those special lenses in view of the various decisions referred to above. 21.Having said so, since the instant appeal calls upon this Court to ascertain whether the trial Court properly handled the issue of burden of proof, then that is a matter of law. This Court is, hence, properly seized of this appeal. (b) Whether the requisite burden of proof was attained in the suit: 22.Sections 107, 108 and 109 of the Evidence Act deal with the burden of proof in the following manner: -107.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.108.Incidence of burden.The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.109.09. Proof of particular fact.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 23.The above provisions govern the aspect of the burden of proof. For clarity, there are two limbs of the burden of proof being the legal burden of proof and the evidential burden of proof. Whereas the legal burden of proof is always static on the claimant, the evidential burden of proof initially rests on the claimant, but may shift to the other party depending on the weight of evidence adduced by the claimant. A detailed discussion on this aspect was undertaken by the Supreme Court in Raila Amolo Odinga & another v IEBC & 2 others {2017} eKLR and the Court of Appeal in Mbuthia Macharia -vs- Annah Mutua Ndwiga & another 2017] eKLR. 24.It is now this Court’s duty to apply the above standard to the evidence on record so as to ascertain whether the Appellant, then Claimant, discharged his burden of proof as required in law. 25.The trial Court, correctly so, addressed itself to the evidence on record and found that the Appellant proved the occurrence of the accident. On his part, the Appellant leaned heavily on the Police Abstract as conclusive proof of negligence. However, as observed by the Learned Adjudicator, a Police Abstract is merely prima facie evidence that an accident occurred. It is not, in and of itself, conclusive proof of negligence. Negligence is a specific tort requiring the claimant to prove a duty of care, a breach of that duty, causation, and resulting damage. The trial Court accurately noted a glaring evidentiary gap: namely, that the Appellant neither stated to have been walking on a designated pedestrian path nor were there any details as to how the accident occurred. Even the pleadings and the Appellant’s statement did not highlight on the issue. 26.In this Court’s respectful view, a mere assertion that a vehicle was driven carelessly is a conclusion, not a factual detail demonstrating a breach of duty. The Appellant’s reliance on Mary Njeri Murigi -vs- Peter Macharia is distinguishable. In that case, there was an independent eyewitness who provided a vivid, uncontroverted account of the offending driver speeding and crushing a pedestrian specifically at a designated zebra crossing. In this case, the Appellant provided no such contextual detail to anchor the claim of negligence. 27.Therefore, the Learned Adjudicator correctly applied the standard of proof, and on a balance of probabilities, found the claim not proved. The finding that the evidence was insufficient to establish culpability was a sound factual determination, not an error of law. 28.The appeal seems to fail.Disposition: 29.In the end, the following final orders hereby issue: -(a)The Appeal is hereby dismissed in its entirety.(b)Since the Respondents did not participate in the appeal, there shall be no orders as to costs.Orders Accordingly DELIVERED, DATED AND SIGNED AT NAIROBI THIS 22ND DAY OF MAY, 2026.A.C. MRIMAJUDGE Judgment virtually delivered in the presence of:Ms Aluodo, Learned Counsel for the Appellant.No appearance for the Respondents.Michael/Amina – Court Assistants.