https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9740

Mutwii v Munari (Civil Appeal 150 of 2023) [2026] KEHC 9740 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KEHC 9740 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal 150 of 2023 AN Ongeri, J June 12, 2026 Between Kennedy Mwendwa Mutwii Appellant and Julius Tangai Munari Respondent (Being an Appeal from the Judgement of HON. M THIBARU (ADJ/RM) in MACHAKOS SCCC NO. E 062 of 2022 delivered on 29/05/2023) Judgment 1.In the judgment delivered by the Small Claims Court at Machakos, the appellant, Kennedy Mwendwa Mutwii, brought a claim against the respondent, Justus Tangai Munari, arising from a road traffic accident that occurred on 21st August 2022. 2.The appellant’s motor vehicle, registration number KBZ 702N, was being driven along the Nairobi-Mombasa road when it was allegedly hit by the respondent’s vehicle, registration number KCE 078U/ZF2601, which the appellant claimed was negligently and dangerously driven while trying to join the road without checking for oncoming traffic. 3.The appellant sought special damages of Kshs. 217,550, costs, and interest. 4.The respondent denied liability and instead blamed the appellant’s driver for the accident. 5.The matter was determined on the basis of documents and written submissions, as the appellant did not call his driver as a witness, nor did the investigating officer give oral evidence. 6.The trial court noted that the appellant was not present at the scene and his evidence about the accident was hearsay, thus of no probative value. 7.The respondent, in his witness statement, claimed that the appellant’s driver had suddenly stopped ahead of him at an undesignated place, causing the collision. 8.Citing the Evidence Act, Sections 107, 108, and 109, as well as established legal precedents, the court held that the burden of proving negligence lies on the party alleging it, and the mere occurrence of an accident is not prima facie evidence of negligence. 9.The trail court found that the appellant failed to provide affirmative, admissible evidence from his driver or any sketch map or independent witness and the court found that he had not discharged the burden of proof on a balance of probabilities. 10.Consequently, the trial court dismissed the suit with costs to the respondent. 11.The appellant appealed against the said judgment on the following grounds;i.That the trial magistrate failed to provide a concise statement of the case, points of determination, decision thereon, and reasons for the judgment.ii.That the trial magistrate failed to consider the appellant’s submissions and ignored relevant guiding facts, leading to an unfair dismissal of the suit.iii.That the trial magistrate dismissed the appellant’s case without justification and failed to appreciate that the appellant had proven liability on a balance of probabilities using the police abstract and the respondent’s driver’s admission.iv.That the trial magistrate failed to consider the appellant’s documents, particularly the police abstract, despite the parties having agreed to rely on documents under section 30 of the Small Claims Act.v.That the trial magistrate dismissed the appellant’s case despite the appellant producing documents that categorically confirmed the respondent’s liability for the accident.vi.That the trial magistrate applied wrong and inapplicable principles of law in a civil case, which did not support his determination on liability and general damages 12.The parties filed written submissions as follows; 13.The appellant, Kennedy Mwendwa Mutwii, appeals against the judgment of the Resident Magistrate delivered on 29th May 2023 in Machakos SCCC No. 62 of 2023, which dismissed his claim for material damages of Kshs. 217,550 arising from a road traffic accident that occurred on 21st August 2021. 14.The appellant argues that the trial magistrate erred in fact and law by failing to provide a concise statement of the case, points of determination, and reasons for the judgment. 15.The appellant further contends that the trial magistrate ignored his submissions and relevant guiding facts, and dismissed the claim without justification. 16.According to the appellant, the trial court failed to appreciate that he had proved his case on a balance of probabilities using the police abstract and the respondent’s driver’s statement, both of which blamed the respondent for causing the accident. 17.The parties had agreed to proceed under Section 30 of the Small Claims Act, relying solely on documents and written statements without calling oral witnesses. 18.Despite this agreement, the trial magistrate dismissed the suit because the appellant did not call the driver or the investigating officer as oral witnesses. 19.The appellant submits that this was erroneous because the Small Claims Court framework expressly allows determination on the basis of written statements and documents, and no oral testimony was required. 20.The police abstract, which has been judicially recognized as sufficient proof of liability in the absence of contrary evidence, clearly blamed the respondent’s driver for the accident. 21.Additionally, the respondent’s own driver admitted in his written statement to hitting the appellant’s vehicle from behind. 22.The respondent produced no rebutting evidence, such as a sketch plan, independent report, or traffic incident dispute. 23.The appellant argues that the burden of proof on a balance of probabilities was fully discharged through the documentary evidence, and the trial court’s insistence on oral testimony contradicted the parties’ procedural agreement. 24.Citing Nandwa v Kenya Kazi Ltd (1988) KLR 488, the appellant states that where a set of facts raises a prima facie inference of negligence, the issue should be decided in the plaintiff’s favour unless the defendant provides adequate evidence to displace that inference. 25.The appellant also relies on Carolyne Indasi Mwonyonyo v Kenya Bus Service Ltd (2012) eKLR, which defines evidence to include documents and exhibits without necessarily requiring oral testimony. 26.The appellant submits that the trial court’s decision was unsupported by the evidence, contrary to the agreed mode of hearing, and a misapplication of the applicable evidentiary standards. 27.Relying on Sections 1A, 1B, and 3A of the Civil Procedure Act, the appellant invokes the court’s inherent powers to do justice and argues that technicalities should not defeat a meritorious claim. 28.Citing Miller v Minister of Pensions (1947), the appellant notes that proof on a balance of probabilities requires the tribunal to think it more probable than not that the claimant’s case is true. 29.The appellant therefore prays that the appeal be allowed, the trial court’s judgment set aside, judgment be entered in his favour as originally claimed, and costs be awarded to the appellant. 30.The respondent argues that the High Court’s jurisdiction in this appeal from the Small Claims Court is limited to matters of law only, as provided under Section 38 of the Small Claims Court Act. 31.The appellant placed excessive reliance on a police abstract, but the contents of such an abstract are not conclusive proof of liability, especially when no supporting evidence—such as testimony from the investigating officer or sketch maps—was tendered. 32.Several court decisions are cited to support this position, including Kennedy Nyangoya v Bash Hauliers, Mwema Musyoka v Paulstone Shamwamam Sheli, and Benter Atieno Obonyo v Anne Nganga, each emphasizing that an abstract alone does not establish negligence. 33.The respondent submits that the appellant failed to discharge the burden of proof on a balance of probabilities, as required under Sections 107 and 108 of the Evidence Act. 34.The trial court properly found that the appellant’s sole witness statement was hearsay and therefore inadmissible. 35.The respondent argues that the trial court did consider the appellant’s submissions, but even if it had not, submissions are not evidence and do not form part of the case. 36.The appellant presented contradictory documents and failed to call an eyewitness, leaving the trial court with no choice but to decide on the available probabilities. 37.The judgment of the adjudicator is said to be fair and based on the record. 38.The respondent concludes that the appeal lacks merit and ought to be dismissed with costs. 39.The issues for determination in this appeal are as follows;i.Whether an appeal on the grounds raised lies from the Small Claims Court to the High Court under the law,ii.Whether the trial court erred in law by failing to comply with the statutory requirements for the form and content of a judgment,iii.Whether the trial court erred in law by disregarding the parties' consent to determine the matter solely on documents and written statements pursuant to Section 30 of the Small Claims Court Act, andiv.Whether the appellant discharged the burden of proof on a balance of probabilities to establish liability and special damages. 40.On the first issue of whether this appeal lies, Section 38(1) of the Small Claims Court Act, 2016, strictly limits appeals from the Small Claims Court to the High Court to matters of law only. 41.The respondent's contention that this appeal invites the court to re-evaluate factual findings is misplaced, as the appellant’s grounds fundamentally assert that the trial court applied wrong legal principles, misapprehended the statutory framework governing the small claims procedure, and ignored mandatory evidentiary provisions. 42.These are pure questions of law regarding statutory interpretation and the application of legal standards, and therefore, this appeal properly lies before this court. 43.Turning to the merits of the appeal, the trial court fundamentally misapprehended its role and the unique statutory framework governing the Small Claims Court. 44.Under Section 30 of the Small Claims Court Act, the court is empowered to adopt flexible, expeditious, and informal procedures, which include acting on documents and written statements without requiring oral testimony if the parties so agree or if the court deems it fit. 45.The record shows that the parties explicitly agreed to proceed by way of documents and written statements. 46.Despite this binding procedural pact, the trial magistrate discarded the very essence of the Small Claims Court framework by penalizing the appellant for failing to call his driver or the investigating officer as oral witnesses. 47.By holding that the appellant's case failed solely due to the absence of oral testimony, the trial court committed a grave error of law, rendering the statutory provisions of Section 30 redundant and defeating the overriding objectives of access to justice, proportionality, and expeditious disposal of disputes as enshrined in Sections 3 and 32 of the Act, as well as Sections 1A, 1B, and 3A of the Civil Procedure Act. 48.Furthermore, the trial court erred in law by treating the documentary evidence as incompetent hearsay. 49.While in general civil litigation, a police abstract alone does not conclusively establish liability, the evidentiary standard in a Small Claims Court must be viewed through the lens of its enabling statute. 50.In the Small Claims Court, documents properly filed and adopted by consensus constitute the substantive evidence of the case. 51.The police abstract produced by the appellant clearly indicated that the respondent's vehicle blamed for the accident, and more tellingly, the respondent's own driver admitted in his written statement that he hit the appellant's vehicle from behind. 52.The act of hitting a vehicle from behind creates a strong prima facie inference of negligence on the part of the trailing driver. 53.Where a set of facts raises a prima facie inference of negligence, the burden shifts to the defendant to provide adequate evidence to displace that inference. 54.The respondent failed to adduce any rebutting evidence, such as a sketch plan or an independent surveyor's report, to show that the collision was unavoidable or entirely caused by the appellant suddenly stopping. 55.By failing to appreciate that the uncontroverted combination of the police abstract and the respondent’s driver’s own written admission effectively shifted the evidential burden to the respondent, the trial court misapplied Sections 107 and 108 of the Evidence Act. 56.The appellant clearly proved his case on a balance of probabilities as the evidence made it far more probable than not that the respondent's driver was solely to blame for the accident. 57.The trial magistrate also breached Section 32 of the Small Claims Court Act by failing to provide a concise statement of the points for determination and a legally sound rationale for dismissing a claim supported by clear, uncontradicted documentary proof. 58.Consequently, this appeal is allowed, the judgment and orders of the Small Claims Court at Machakos dismissing the claim are hereby set aside, and judgment is entered for the appellant against the respondent for the sum of Kshs. 217,550, together with costs and interest. 59.The interest is from the date of filing the suit in the SCCC until payment in full. 60.Orders to issue accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE 2026ASENATH N. ONGERIJUDGEIn the presence ofMiss Odero holding brief for Mr Kitindion Musembi for the AppellantMiss A Singi for the RespondentChrispin - Court Assistant