https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10628

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL APPELLATE DIVISION** **CIVIL APPEAL NO. E 1381 OF 2024** **(CONSOLIDATED WITH HCCA E1287 OF 2024)** **ELIAS NDWIGA KAUMBUTHU…………………………..........APPELLANT** **-VERSUS-** **NANCY MUYA………….……..........................................RESPONDENT** ***(Being an appeal from the judgment of JUSTINE ASIAGO (RM) delivered*** ***on*** ***08.10.2023 in*** ***SCCC No. E 1754 of 2023)*** **J U D G M E N T** **Background** 1. This appeal emanates from the judgment delivered on **8TH October, 2023** (as referenced in the appeal)in **SCCC No. E 1754 of 2023**. The suit at the Small Claims Court was a road traffic case claiming material damage to motor vehicle KBY 293U in the sum of Kshs.420,350/-. 2. The Claimant blamed motor vehicle KDE 371Q for the accident and called the Driver of motor vehicle KBY 293U as CW1 and the Assessor as CW2. 3. The suit was defended with the Respondent blaming the Claimant for the accident, the Respondent called the driver of motor vehicle KDE 371Q –RW1 and a Police Officer, CPL Kiptum as RW2.The testimony of the Police Officer indicated that from the occurrence book motor vehicle KBY 293U was to blame. 4. The trial court delivered its judgement on 8th October,2024, its dated 10th October,2024 and apportioned blame at 50%:50% between the parties because of lack of clarity on who to blame and proceeded to award the Claimant as follows: 5. Repair costs Kshs.268,540/- 6. Assessors fee Kshs.6,500/- 7. Re-inspection fee Kshs.2,000/- 8. Motor Vehicle Search Kshs.550/- 9. Less 50% contribution. 10. Upon delivery of the judgment, the Claimant sought for review of the judgement vide an application dated 15th October, 2024 .A ruling on this application was delivered on 21st November, 2024. The Claimant has then filed the instant appeal dated 28th November, 2024 against the judgment of 10th October, 2024. 11. The Respondent has also filed an appeal against the judgment of 10th October, 2024,now treated as the cross appeal. **The Appeal** 1. The Appellant seeks to appeal against the entire judgement on the following grounds: 2. ***THAT the Honorable trial Magistrate erred in both law and fact when he found that there was a tie between the claimant and the respondent's driver thereby apportioning liability at 50%: 50% while indeed there were extra pieces of evidence e.g the original police abstract in the matter clearly showing that the respondent driver was wholly to blame.*** 3. ***THAT the Honorable trial Magistrate erred in both law and fact when he failed to appreciate that the figures noted in the assessment report are just estimates to guide those going to repair the vehicle but the eventual amounts expended can only be found in the receipts issued after repairs are done.*** 4. ***THAT the learned trial Magistrate erred in both law and fact when he failed to appreciate that certain expenses such as the towing charges could not be contained in the assessment report thereby in the final end denying claimant such an expense which was truly incurred.*** 5. ***THAT the learned trial Magistrate erred in both law and fact when he failed to appreciate that expenses such as towing charges, fees charged by the assessor and re- inspection fees could substantially create a difference between the estimates contained in the assessment report and the amount eventually used by the claimant*** **REASONS WHEREFORE the Appellants prays for judgment against the respondent as hereunder:** 1. ***The decision of Hon. Justine Asiago dated 8th October 2024 be and is hereby vacated and respondent held a 100% to blame.*** 2. ***THAT judgment on quantum be and is hereby entered as earller claimed in the lower court Ksh 420,350/-.*** 3. ***Costs of this appeal and in the lower court be awarded to the appellant Elias Nowiga Kiumbuthu.*** 4. The respondent filed a cross-appeal against the whole judgment on the grounds: 5. ***THAT the trial Court erred in Law and in Fact ,in that it misdirected and misapplied itself by apportioning liability in the ratio of 50:50 between the Appellant and the Respondent.*** 6. ***THAT, the trial Court erred in Law and in Fact and misdirected itself by disregarding the testimony given by the Appellant’s witness that the Respondent’s vehicle was to blame for the accident.*** 7. ***THAT ,the trial Court erred in Law and in Fact and misdirected itself by failing to appreciates the principle that liability must always follow fault and thus the Claimant failed to discharge its burden of proof.*** 8. ***THAT the trial Court erred in failing to give consideration or weight to the arguments and submissions of the Appellants counsel and to case law cited on the law relating to liability.*** ***REASONS WHEREOF-The Appellant prays that;*** 1. ***The Appeal be allowed and the Small Claims Court's judgement of 8th October 2024 be wholly set aside.*** 2. ***Costs of the appeal.*** **Parties’ Submissions on the Appeal** 1. The appeal was canvassed by way of written submissions. Counsel for the appellant submitted that the trial court erred in apportioning liability at 50:50, stating the original abstract indicated that motor vehicle KDE 371Q was blamed and although the investigating officer was not called to produce ,his views were relevant. The appellant faulted the 2nd abstract produced in court as having been filed way later by an officer who wasn’t present at the scene and wasn’t the investigating officer and insisted that the respondent should be held 100% liable. The appellant faulted the trial court for not granting the total figure claimed of Kss.420,350/- and pray that the decision be set aside and the full figure granted. 2. The cross appellant submitted that the trial court was wrong for finding that “fault was not established” and proceeding to apportion 50: 50 liability. They also faulted the appeal by the appellant claiming that special damages of towing and damage were not specifically pleaded and strictly proven for the court to award the initial claim of Kshs.420,350/-.The respondent submitted that having apportioned liability at 50: 50,the court should have had each party to bear own costs. **Analysis and Determination** 1. The court has considered the record of appeal, the pleadings and original record of the proceedings as well as the submissions by the respective parties. This is a first appeal. The Court of Appeal for East Africa set out the duty of the first appellate court in **Selle v Associated Motor Boat Co. [1968] EA 123** in the following terms: ***“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.*** ***An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.*** ***In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”*** 1. An appellate court will not ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or it is demonstrated that the court below acted on wrong principles in arriving at the finding it did. See **Ephantus Mwangi & Another v Duncan Mwangi Wambugu [1982 – 1988] IKAR 278.** 2. Having earlier summed up the contents of the pleadings which were relied on by the parties, the trial court after restating and analyzing the evidence, the issues for determination can be summarized as follows: 3. ***Is the appeal merited?*** 4. ***Is the cross appeal properly before the court under Section 38 of the Small Claims Act?*** 5. ***Costs of the suit and appeal.*** ***Is the appeal merited?*** 1. When the Judgement was delivered by the lower court, the Applicant had two options, either to appeal and if there were grounds laid out, to seek a review. 2. Section 80 of the ***Civil Procedure Act*** is quite clear on this. It provides as follows:- *Any person who considers himself aggrieved—* *(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or* *(b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.* 1. Further Order 45 Rule 1 of the Civil Procedure rules is to the effect that:- (1) *Any person considering himself aggrieved—* *(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or* *(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.* *(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.* 1. The moment the Appellant opted to pursue a review of the judgment; he was estopped from appealing from the same judgement, unless the appeal was against the ruling on review. The Appellant could not pursue both appeal and review on the same judgment. 2. This position was affirmed in the case of **Serephen Nyasani Menge v Rispah Onsase [2018] eKLR** where it was held that: ***“In my view a proper reading of Section 80 of the Act and Order 45 Rules 1 and 2 makes it abundantly clear that a party cannot apply for review and appeal from the same decree or order.”*** 1. Upon dismissal of the application for review ,the Appellant lost his right of appeal before this court. He cannot have his cake and eat it. 2. In the case of **Gerald Kithu Muchanje v. Catherine Muthoni Ngare & Another [2020] eKLR**, the Court of Appeal rendered itself thus:- ***“...Under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, where a party opts to apply for review of a judgment and decree, such a party cannot after the review application is rejected exercise the option to appeal against the same judgment and decree that he sought to review. In the instant application, the applicant exhausted the process of review proceedings and now wishes to go back and try his luck once again with an appeal against the original Judgment. The applicant wants to have a second bite of the same cherry and he cannot be permitted to do so. There is no doubt that this will cause prejudice to the respondents. Litigation must come to an end somehow and it cannot be conducted on the basis of trial and error. An appeal could only lie on the outcome of the application for review. In the case of Martha Wambui v Irene Wanjiru Mwangi & Another (2015) eKLR, the court stated that “From the above provisions of section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure rules, it is clear that one cannot exercise the right of appeal and at the same time apply for review of the same Judgment/decree or order. One must elect either to file an appeal or to apply for a review… It therefore follows that the appellant herein had an unimpeded right to either appeal against the ruling of 13/6/2014 or apply to have it reviewed. And having exercised the right to a review, she lost the right of appeal against the same order …”*** 1. Flowing from the above reasoning, I find that the appeal cannot stand; the same is dismissed with no orders as to costs. ***Is the cross appeal properly before the court under Section 38 of the Small Claims Act?*** 1. Section 38 of the Act provides:- ***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***. 1. In distinguishing between matters of law and fact the Court of Appeal stated in **Kenya Breweries Ltd vs Godfrey Odoyo [2010] eKLR** as follows:- ***I have anxiously considered the pleadings, the evidence on record, the judgment of the learned Senior Resident Magistrate and the judgment of the superior court, the grounds of appeal, the submissions of the learned counsel as well as the authorities to which we were referred. First, this is a second appeal. In a first appeal the appellate court is by law enjoined to revisit the evidence that was before the trial court and analyse it, evaluate it and come to its own independent conclusion. In other words, a first appeal is by way of retrial and facts must be revisited and analysed a fresh. In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two 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.*** 1. I have perused the grounds in the memorandum of appeal and noted that they relate primarily to questions of fact. The cross appellant is aggrieved that the learned adjudicator apportioned liability equally between them and the respondent. The grounds as raised by the cross appellant are on matters of fact which will require this court to scrutinize and re-evaluate the evidence once more. However, that is contrary to the jurisdiction of this court sitting as an appellate court pursuant to Section 38 of the Small Claims Court Act which provides for appeals only on matters of law. 2. On the issue of costs, the learned adjudicator awarded costs of the suit to the Claimant/Appellant. It is trite that costs are discretionary. Further Section 27 of the Civil Procedure Act stipulates that costs follow the event. 3. In the case of **Republic vs Rosemary Wairimu Munene (ex parte applicant) Ihururu Dairy Farmers Cooperative Society Ltd (2014) eKLR**, it was held that:- ***The issue of costs is the discretion of the court as provided under the above section. The basic rule on attribution of costs is that costs follow the event…It is well recognized that the principle costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case.*** 1. Applying the above principles to the instant case, a successful party in a suit is entitled to costs unless there are reasons for not awarding costs which must be recorded by the court. The appellant was successful before the magistrate court. As such, the magistrate directed that he be awarded costs. Cost is not dependent on liability. The magistrate therefore exercised his jurisdiction on the issue of costs. The court has no reason to interfere with the said orders. 2. Consequently, I find that the instant cross appeal fails, as it is not properly before this court. I hereby dismiss it with no orders on costs. ***Dated, signed and delivered virtually at Nairobi this 16th day of July 2026.*** **DAVID MBURU** **JUDGE**