https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12149

***REPUBLIC OF KENYA*** ***IN THE HIGH COURT AT THIKA*** ***CIVIL APPEAL NO. E127 OF 2025*** ***PURITY KARIMI KATHURIMA…………………….……..APPELLANT*** ***-VERSUS-*** ***PETER KIBUGI……………………………………...…….RESPONDENT*** ***(****Being an appeal from the Judgment of the Honourable M. Kamau delivered on the 17th April 2025 in the Small Claims Court at Thika in SCCC no. E797 of 2024****.)*** ***REPUBLIC OF KENYA*** ***IN THE SMALL CLAIMS COURT AT THIKA*** ***CLAIM NO. E797 OF 2024*** ***PURITY KARIMI KATHURIMA…………………………………….………CLAIMANT*** ***-VERSUS-*** ***PETER KIBUGI………………………………………………………..…RESPONDENT*** ***JUDGMENT*** **BACKGROUND** 1. This is an appeal from the judgment delivered by Hon. M.W. Kamau on ***17th April 2025*** Thika ***CMCC E797 of 2024***. The Appellant had filed the suit seeking Special and General Damages against the Respondent for the loss and damage occasioned to the Appellant through a road traffic accident that occurred on the ***25th December 2022*** involving motor Vehicle Registration No. **KD 057Z** that was negligently being driven by the Respondent’s driver and the Appellant who was a lawful pedestrian. 2. In the said Judgment the trial court apportioned liability in the ratio of 50:50 against the parties, and set out the following grounds: - * 1. **THAT** the Learned Trial Magistrate misapprehended and/or misconceived the tenor, effect and consequences of the evidence tendered in court on behalf of the Appellant as regards the liability of the Respondents and thereby arrived at an erroneous decision. 2. **THAT** the learned trial adjudicator erred by in law by apportioning the Appellant 50% liability for the occurrence of the accident despite no evidence supporting the assertion thereof. 3. **THAT** the Learned trial Magistrate erred in law and in fact by disregarding the Appellant’s duly filed submissions and the binding authorities made on behalf of the appellant without any proper reasons to do so. 4. **THAT** the learned Magistrate erred in law and in fact in not exercising her discretion judiciously. 1. The appellant prayed that the appeal be allowed with costs and the liability be wholly apportioned to the Respondent. **Trial Court Evidence** 1. It was the Appellant’s testimony in the trial court that on about 25th December 2022, she was crossing the Northern bypass Road, As she was about to finish crossing, she told court that the Respodents motor vehicle **KD 057Z** knocked her. She blamed the accident in the manner the Respondent’s driver drove in an excessive speed and caused the accident. The Appellant called a police officer who testified that the area where the accident occurred is a densely populated area. According to the report at the police station, the witness told court that the driver had only heard a bang and upon checking, the driver realized that he had knocked the Appellant. 2. The Respondent’s witness had testified and told court that the area was densely populated and that he was driving at a speed of between 5-10 KPH. That there is a bus stop at the area. His testimony was that the Appellant, who was a tout, knocked herself against the vehicle as she crossed the road to find clients. **Submissions by the Appellant** 1. The Appellant submitted that the trial court erred in failing to find that they had proved liability against the Respondent on a balance of probabilities, and placed reliance on the Statement of claim, witness statement, list of documents and the Claimant’s written submissions. 2. The Appellant faulted the trial court for failing to consider its evidence and the evidence of the police officer on the occurrence of the accident. 1. Counsel submitted on the degree of proof and submitted that the standard of proof in civil cases is on a balance of probability, placing reliance on the case of ***Miller v Minister of Pensions [1947]2ALL. ER 372*** where the Court of Appeal stated that: *-“****That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case*.** 2. Counsel submitted that the failure of the Respondent to lead any evidence from an independent witness rendered the Respondent’s testimony a mere sham as the Respondent’s driver duly acknowledged that the area was a densely populated area with human traffic on the subject road and therefore, he was expected to drive at a reasonable speed. 3. The Respondent did not file any submissions on the Appeal. **Analysis and Determination** 1. From the onset, this is an Appeal from the Small Claims Court. The Appeal questions the evaluation of evidence by the trial court and the findings of that court on the question of liability. 2. Section 38 (1) of the Small Claims Act states that any appeal against a decision in a small claims matter can only be on a point of law. I have considered the grounds of Appeal and the Submissions by the Appellant. The grounds of Appeal as set out are as follows ; that the court misapprehended and/or misconceived the tenor, effect and consequences of the evidence tendered in court on the liability; that the court erred in apportioning the Appellant 50% liability for the occurrence of the accident despite no evidence supporting the assertion thereof; that the court erred in law and in fact by disregarding the Appellant’s duly filed submissions and the binding authorities and that the court erred in law and in fact in not exercising its discretion judiciously. 1. Other than ground 3 which relates to disregarding of the submissions and the authorities cited by the Appellant, the other remaining three grounds are matters of fact and evidence, relating to the evaluation of the evidence that was tendered in court and the discretion of the court. 2. As stated in ***David vs Nutrimatrix Enterprises Ltd (Civil Appeal E246 of 2024,*** “***the grounds as raised by the Appellant touch on matters of facts which will require this court to scrutinize and re-evaluate the evidence. Section 38 bars appeals from small claims court on matters of fact…***” 3. My finding is that the ground number 1, 2 and 4 raised are on matters of fact and therefore cannot pass the threshold set under Section 38(1) of the Small Claims Court Act. 4. As regards Ground 3, the Appellant submits that the trial court ignored its submissions and authorities and ended up with a wrong finding. I have had an opportunity of considering the entire Submissions by the parties, and more so the submissions filed by the Appellant in the trial court, and appearing on page 37 -67 of the Record of Appeal. The Appellant had submitted on the evidence that was tendered in court and the duty of care. She had placed reliance on the case of ***Mary Njeri Murigi vs Peter Macharia & Another (2016) KLR,*** and ***Masembe vs Sugar Corporation and Another (2002) 2EA 434*.** The two decisions speak to the duty of care for persons using a road and persons in charge of a motor vehicle. 5. In paragraph 5 and 6 of the Judgment of the trial court, the trial magistrate considered the evidence on record and the duty of care and considered the speed of the Respondent at the time of the accident. In apportioning liability, the court equally considered comparable decisions and cited ***Wakim Sodas Ltd vs Sammy Aritos (2017) KEHC 3427 (KRL)*.** 6. My finding is that the trial court considered the submissions filed by the Appellant when it arrived at the decision to apportion liability, and exercised its discretion and it cannot be faulted. **In *Govani v shah & Another, Jaff (Third Party) Civil Appeal 185 of 2019,* the learned Judges of Appeal reiterated the finding in *Mbogo v Shah (1968) EA* the court stated follows:-** ***“I think it is well settled that this court will not interfere with the exercise of discretion of the inferior court unless it is satisfied that its discretion is clearly wrong because it has misdirected itself or because it has acted on matters of which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so it arrived at a wrong conclusion. It would be wrong for this court to interfere with the exercise of trial Judges decision merely because this court’s decision would have been different”.*** 1. My finding is that there is no evidence that the trial court exercised its discretion wrongly or that it acted on matters which it should not have acted on and therefore there is no justification for this court to interfere with the discretion and the findings of the trial court. 2. **The upshot of the matter is that the Appeal herein lacks merit and the same is dismissed with costs to the Respondent.** **Judgment** delivered, dated and signed virtually at **Nairobi** this **31st** dayof **July,** 2026. **…………………………..………………** **L. M. WACHIRA** **JUDGE** **In the Presence of:** *Leadys* – Court Assistant *N/A for Appellant* *E. Kamau* for the Appellant.