https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7106

JMM (A minor suing through her mother and next friend JVM v Maluki (Civil Appeal E311 of 2023) [2026] KEHC 7106 (KLR) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 7106 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E311 of 2023 BM Musyoki, J May 22, 2026 Between JMM (A minor suing through Her Mother And Next Friend JVM) Appellant and David Maundu Maluki Respondent (n appeal from judgment and decree of the Small Claims Court at Machakos (Hon. B. Luova RM) dated 16-11-2023 in her claim number E449 of 2023) Judgment 1.The appellant brought a claim against the respondent before the lower court claiming special and general damages as compensation for injuries she sustained in an accident that occurred on 24-05-2023 involving motor vehicle registration number KAJ 234K (hereinafter referred to as ‘the vehicle’) and motor cycle registration number KMFW 903G (hereinafter referred to as ‘the motor cycle’). It was claimed that at the time of the accident, the appellant was lawfully riding on the motor cycle as a pillion passenger when the motor vehicle was so negligently driven that it collided with the motor cycle. 2.The matter went through full trial and on 16-11-2023, the trial court returned a verdict that the appellant had not proved negligence on the part of the respondent and proceeded to dismiss the claim with costs to the respondent. This decision sparked this appeal which lays out the following grounds; 1.That the learned Adjudicator erred in law and in fact by failing to consider the entirety of the appellant’s evidence, witnesses and submissions. 2.That the learned Adjudicator erred in law and in fact by considering extraneous factors and not the pleadings filed by the parties. 3.That the learned Adjudicator erred in law and fact by finding that liability for occasioning of the accident was not proven despite the preponderance of evidence tendered. 4.That the learned Adjudicator erred In law and in fact by failing to consider the doctrine of Res Ipsa Loquitor and that the subject of the claim was a minor of tender years. 3.This is an appeal from the Small Claims Court and as such, my jurisdiction is by virtue of Section 38(1) of the Small Claims Court Act limited to matters of law. I have gone through the memorandum of appeal and the submissions of the parties alongside the evidence produced in court. The only matter of law I have identified from the reading is that the court erred by not applying the principle of Res Ipsa Loquitor which is a principle of law. 4.The aforesaid principle translated literally means that ‘things speak for themselves.’ This principle posits that, the circumstances surrounding a particular case or issue cannot lead to anything other than a conclusion in favour of the results being pushed. Specific to this case, the principle if applied would mean that the circumstances surrounding the occurrence of the accident would without any other explanation point to negligence on the part of the respondent. This may include but it is not limited to the condition of the vehicle and the motor cycle, the condition of the scene of the accident and acceptable or popular legal assumptions on traffic matters. 5.It is common ground that none of the appellant’s witnesses was an eye witness to the accident. The police investigations did not give a conclusive opinion of who was to blame for the accident although CW2 who was not the investigating officer said the vehicle was blamed. The police abstract which was produced by CW2 shows that the case was referred to the insurance with no indication that the motor vehicle was to blame. 6.The appellant did not explain or describe the scene of the accident or any circumstances which would justify application of the principle of Res Ipsa Loquitor. This was a collision and the appellant has not justified why the motor vehicle was to blame and not the motor cycle. Occurrence of the accident does not per se mean that the driver was to blame. The claimant must give reasons or establish facts which would lead the court to apply the principle. 7.In Sally Kibii & another v Francis Ogaro [2012] KEHC 1874 (KLR), M.K. Ibrahim (as he then was and may his soul rest in eternal peace) stated that;‘To my understanding, “res ipsa loquitor” would apply where the subject matter is entirely under the control of one party and something happens while under the control of that party, which would not in the ordinary course of things happen without negligence. See Bikwatirizo V Railway Corporation [1971] E.A 82. To successfully apply this doctrine, there must be prove of facts that are consistent with negligence on the part of the defendant as against any other cause.’ 8.Based on the above, I find no reason to fault the trial court and therefore this appeal lacks merits and it is consequently dismissed with costs to the respondent. DATED SIGNED AND DELIVERED AT NAIROBI THIS 22ND DAY OF MAY 2026.B.M. MUSYOKIJUDGE OF THE HIGH COURT.Judgment delivered in presence of Miss Muthoki holding brief for Mr. Mburu for the appellant and in absence of the respondent.