https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9614

MNM v Board of Management St George Katheka High School & another (Civil Appeal E160 of 2024) [2026] KEHC 9614 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9614 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E160 of 2024 AN Ongeri, J June 25, 2026 Between MNM Appellant and Board of Management St George Katheka High School 1st Respondent St George Katheka High School 2nd Respondent (Being an appeal from the judgment of HON. M. THIBARU (RM/ADJ) in MACHAKOS SCCCC NO. E160 of 2024 delivered on20/5/2024) Judgment 1.The trial court delivered its judgment on a claim brought by the appellant, MNM (a minor), against the respondents, Bom St. Georges Katheka High School and St. Georges Katheka High School, arising from a fire that broke out at the school dormitory on 5th July 2023, in which the appellant sustained serious bodily injuries. 2.The appellant, who was a day scholar, testified that she had been forced to spend the night at the school dormitory after arriving late from a trip, and that the fire was caused solely by the respondents' negligence, carelessness, or recklessness on the part of their employees, servants, or agents. 3.The respondents, through the office of the Attorney General, denied the claim, and the matter proceeded by way of oral evidence, with the appellant not filing submissions. 4.The trial court identified two main issues for determination namely liability and quantum. 5.In considering the evidence, the trial court noted that the appellant’s allegation that she was forced to sleep at school was rebutted by the respondents' witnesses, the school principal and matron, who testified that it was an established school tradition for students arriving late from trips to spend the night at school, and that no complaint had ever been raised about this practice. 6.They further testified that they had inspected the dormitory before the students went to sleep and found everything in order, and that they were awakened by screams at 11:00 p.m. when the fire broke out, with the matron sleeping next to the dormitory and responding quickly. 7.The respondents also stated that fire extinguishers were available, and they managed to control the fire using water as it was not too large. 8.The trial court then examined the legal principles governing negligence, citing the determinants of negligence as set out in Caparo Industries PLC v Dickman [1990] 1 ALL ER 568 and Chun Pui v Lee Chuen Tat [1988] RTR 298, which require the existence of a duty of care, a breach of that duty, a causal connection between the breach and the damage, and foreseeability of the damage. 9.The trial court also referred to Caparo Industries PLC v Dickman (supra) for the proposition that, in addition to foreseeability, there must be a relationship of proximity or neighborhood and that it must be fair, just, and reasonable for the law to impose a duty, with the onus of proving a breach of duty resting on the claimant throughout the case. 10.The trial court further cited Berkley Steward v Waiyaki [1986-1989] Vol 1 KAR 1118, which allows the court to presume the existence of any fact likely to have happened based on the common course of natural events, human conduct, and public and private business. 11.The trial court found that a school clearly owes a duty of care to its students, but on the question of whether that duty was breached, it held that the respondents could not be faulted for allowing day scholars to spend the night, as it was an established tradition without prior complaint. 12.The trial court also found that the appellant’s allegations regarding the absence of fire extinguishers, leaving students unattended, and failing to conduct inspections were rebutted by the respondents' evidence that inspections were conducted, fire extinguishers were present, and the matron responded swiftly to the screams. 13.The trial court relied on the testimony of the school principal, who stated that after the incident, all relevant ministries were called, investigations were conducted, and some students were charged with causing the fire, producing charge sheets for pending cases. 14.The trial court then applied the definition of negligence from Blyth v Birmingham Water Works Co [1856], which describes negligence as the omission to do something that a reasonable man would do or doing something that a prudent and reasonable man would not do. 15.The trial court concluded that the appellant had failed to demonstrate what omission or action on the part of the respondents led to the fire, and that the school representatives had done what was required of them, thus the allegation of negligence was not proved. 16.Despite this finding, the trial court proceeded to assess the quantum of damages that would have been awarded had the claim succeeded, noting that the medical report by Dr. John Mutunga indicated the appellant sustained 1st and 2nd degree burn wounds on her lower limbs. 17.The trial court considered the respondent’s proposal of Kshs. 120,000, citing the case of Devki Steel Mills v Jared Osodo [2014] eKLR, in which the plaintiff was awarded Kshs. 80,000 for burns on the shoulder, lower abdominal walls, waist, buttock, upper legs, and feet. 18.Borrowing from that case and taking into account inflation, the trial court opined that an award of Kshs. 120,000 would have been sufficient compensation for the injuries sustained. 19.However, the trial court made no award for special damages, as no receipts were produced. 20.In the final result, the trial court dismissed the suit against the respondents and, due to the nature of the claim, awarded no costs. 21.The appellant has appealed against the said judgment on the following grounds;i.That the learned magistrate erred in law and fact by failing to recognize that the Appellant's suit had merit and should not have been dismissed.ii.That the learned magistrate erred in law and fact by failing to properly evaluate the Claimant's evidence and that of her witness, leading to an incorrect decision.iii.That the learned magistrate erred in law and fact by relying entirely on the Respondent's arguments while wholly ignoring those of the Claimant.iv.That the learned magistrate erred in law and fact by failing to apply the correct standard of proof, namely that the Respondent had not proved his case on a balance of probabilities.v.That the learned magistrate erred in law and fact by rendering a decision that was excessively harsh against the Claimant/Appellant, without due consideration of intervening factors and the surrounding circumstances.vi.That the learned magistrate erred in law and fact by disregarding the substantive grounds and detailed submissions presented by the Appellant, which were meritorious. 22.The parties have filed written submissions as follows; The appellant, a former student of the second defendant, submitted that she suffered severe bodily injuries when a fire broke out in a school dormitory on 5 July 2023. 23.She blamed the respondents for the incident, arguing that they forced her, a day scholar whose home was nearby, to stay overnight at the school, which caused overcrowding in the dormitory. 24.After the trial court dismissed her suit in its entirety for failing to demonstrate negligence, she lodged an appeal raising two main issues: whether she had proved her case to the required standard on a balance of probabilities, and whether the appeal was merited. 25.In her submissions, she maintained that the trial court erred by ignoring overwhelming evidence and by failing to properly consider her testimony and the nexus she had established between the respondents’ acts of negligence and her injuries. 26.She invoked the principle that the burden of proof lies on the person who asserts a fact, citing Section 109 of the Evidence Act, Cap 80, and reiterated that in tort claims, proof on a balance of probabilities means showing it is more likely than not that the defendant was negligent. 27.She stressed that because the appellant was a minor, the court must give paramount importance to her best interests under Article 53(2) of the Constitution of Kenya. 28.She relied on the Court of Appeal decision in Jennifer Nyambura Kamau v Humphrey Mbaka Nandi (2013) eKLR regarding the evidential burden of proof, and on James Muigai Thungu v County Government of Trans-Nzoia & 2 others (2022) eKLR for the proposition that he who asserts must prove. 29.She also drew from the Supreme Court decision in Arvind Shah & 7 Others v Mombasa Bricks & Tiles Limited & 5 Others, Petition No. 18 (E020) of 2022, and the Court of Appeal in Archer & another v Archer & 2 others, Civil Appeal 39 of 2020, [2023] KECA 298 (KLR), concerning constructive trusts and the prevention of unjust enrichment, although those cases were cited in the context of land transactions and not directly on negligence. 30.She made reference to the Law of Contract Act, Cap 23, Section 3(3), and the Land Registration Act, Sections 24(a) and 26(1), as well as Section 38(1) of the Land Act, and the principles in Garvey v Richards (2011) JMCA 16 and RTS Flexible Systems Ltd v Molkerei Lois Muller GMBH & Co K.G. (2010) UKSC 14 on contractual formation, but these appeared largely extraneous to the tort claim at hand. 31.Ultimately, she prayed that the appeal be allowed, the trial court’s judgment be overturned, and judgment be entered in her favour, submitting that the appeal was merited and should be allowed to safeguard the minor’s best interests. 32.The respondents opposed the appellant’s written submissions in the Machakos High Court Civil Suit No. E160 of 2024. 33.The appeal seeks to overturn a judgment delivered on May 20, 2024, by the Machakos Small Claims Court, which dismissed the appellant's claim. 34.The original lawsuit stemmed from a fire incident on July 5, 2019, where the appellant, then a student lawfully sleeping in the school dormitory, sustained bodily injuries and losses due to what she alleged was the negligent and careless actions of the school and its agents. 35.The respondents structure their submissions into two primary questions: whether the appellant established the threshold of negligence to the required standard, and whether she proved that the trial court erred in its final determination. 36.Addressing the first issue, the respondents argue that this being a first appeal, the court is required to independently re-evaluate the evidence to reach its own conclusion while bearing in mind that it did not hear or see the witnesses firsthand, a principle established in Selle & Another v. Associated Motor Boat Company Ltd & others (1968) EA 123. 37.The respondents submit that to succeed in the tort of negligence, a claimant must prove the existence of a duty of care, its breach, a causal connection, and foreseeability. 38.They assert that the appellant failed to show that the respondents breached their duty of care or acted in a manner that a reasonable person would deem negligent. 39.Testimony from the school’s witnesses established that the appellant had returned late from an official school trip to Egerton University, and staying overnight on campus was a standard safety practice known to parents and students. 40.The respondents note that the school matron inspected the dormitory before the students slept, and the fact that other students were subsequently charged with arson demonstrates that the fire was an unforeseeable act outside the school's control. 41.Citing William Kabogo Gitau vs George Thuo & 2 Others [2010] 1 KLR 526, the respondents emphasize that while civil cases are determined on a balance of probabilities, meaning a party must establish their case to a 51% threshold, the appellant failed to prove that the fire resulted from any school inaction or omission. 42.Furthermore, using language drawn from Ngeta (Suing as the Personal Representative of the Estate of Tom Mulinge Makau - Deceased) v Njuguna & another [2024] KEHC 6856 (KLR), which itself references Berkley Steward vs Waiyaki Vol 1 KAR 1118 [1986-1989] and EWO (suing as the next friend of a minor COW) vs Chairman Board of Governors-Agoro Yombe Secondary School [2018] eKLR, the respondents argue that while negligence can sometimes be inferred from circumstantial evidence without an eye witness, there must still be evidence to fill the gaps and establish a nexus between the respondents' conduct and the injury, which the appellant failed to provide. 43.On the second issue, the respondents contend that the appellant has laid no basis to overturn the judgment or justify a re-trial, as she merely offered assertions without pinpointing any egregious lapses or errors of law and fact by the trial court. 44.The respondents point out that the appellant failed to demonstrate she was held against her will, denied the right to contact her parents, or left unattended. 45.They state that no evidence or witness testimony was brought to corroborate her claims or show that day-scholars were ordinarily allowed to leave school grounds late at night after trips. 46.Ultimately, the respondents submit that the appellant completely failed to establish a nexus between the school's safety measures and the fire outbreak. 47.Consequently, they urge the High Court to find the appeal entirely unmeritorious and dismiss it with costs to the respondents. 48.The issues for determination in this first appeal are as follows;i.Whether an appeal from the Small Claims Court lies to the High Court under the law,ii.Whether the respondents breached their duty of care towards the appellant thereby anchoring a claim in negligence, andiii.Whether the trial court's assessment of quantum was proper. 49.Addressing the preliminary issue of whether the appeal lies to the High Court, it is vital to reconcile the jurisdiction of the appellate court with the governing statutory framework. 50.Section 38(1) of the Small Claims Court Act, explicitly mandates that a person aggrieved by a final decision of the Small Claims Court may appeal to the High Court, but strictly on matters of law. 51.The respondents’ references to the Machakos SCCCC No. E160 of 2024 confirm that the original litigation was determined within this specialized forum. 52.Under Section 38(3) of the Act, the decision of the High Court on such an appeal is final, establishing a clear statutory channel that clothes this court with the requisite appellate jurisdiction to hear and determine the matter. 53.On the substantive merits of the appeal, the duty of a first appellate court was famously crystallized by the Court of Appeal in Selle and Another v. Associated Motor Boat Company Ltd and Others [1968] EA 123. 54.It is the bounden duty of this court to analyze and re-evaluate the evidence on the record as a whole and draw its own independent conclusions, while maintaining a degree of caution since it did not have the advantage of seeing or hearing the witnesses firsthand. 55.In evaluating the tort of negligence, the trial court rightly observed that a school owes a non-delegable duty of care to the students under its custody. 56.This foundational principle was reaffirmed by the High Court in EWO (suing as the next friend of a minor COW) v. Chairman Board of Governors-Agoro Yombe Secondary School (supra), which recognized that educational institutions stand in loco parentis (in the place of a parent) and must exercise a high standard of supervision to ensure the safety of minors placed under their care. 57.The trial court erred both in law and fact by failing to find that the respondents breached this duty of care. While the respondents contended that keeping the appellant, a day scholar, overnight was an established tradition to ensure her safety after a late arrival, this practice legally transformed her status into a boarder for that night, thereby amplifying the respondents' custodial responsibilities. 58.The standard of care required of a school is not static; it must adapt to the heightened risks associated with nighttime accommodation. 59.The High Court in Ngeta (Suing as the Personal Representative of the Estate of Tom Mulinge Makau - Deceased) v. Njuguna and Another [2024] KEHC 6856 (KLR) observed that while negligence is a question of fact to be proved on a balance of probabilities, the court can infer a breach from circumstantial evidence where the management of a facility falls below the expectations of a reasonable and prudent institution. 60.The trial court heavily relied on the principal’s testimony that other students had been criminally charged with arson, concluding that the fire was an unforeseeable intervention by third parties which absolved the school. 61.This line of reasoning is legally flawed. The criminal culpability of student arsonists does not automatically exonerate an institution from civil liability in negligence. 62.The true test is whether the school took reasonable, preemptive, and structural measures to mitigate the outbreak and spread of any fire, regardless of its source. 63.By housing a day scholar in an already occupied dormitory without showing that the facility could safely accommodate additional students without overcrowding, and by failing to demonstrate the presence of fully operational, professionally inspected fire safety systems that could prevent serious bodily harm, the respondents failed to meet the standard of a reasonable person as defined in Blyth v. Birmingham Water Works Co(supra). 64.The minor’s best interests must be given paramount importance pursuant to Article 53(2) of the Constitution of Kenya, meaning that the school's protective measures must be robust enough to shield children from catastrophic events within its walls. 65.The appellant successfully established a direct causal nexus between the respondents' failure to maintain a completely secure, fire-safe environment and the severe first and second-degree burns she suffered. 66.Regarding the quantum of damages, the trial court conditionally assessed general damages for pain and suffering at Kshs. 120,000 by adapting the holding in Devki Steel Mills v. Jared Osodo [2014] eKLR to account for modern inflationary trends. 67.However, given the vulnerability of the minor and the extensive nature of first and second-degree burns on her lower limbs requiring medical assessment by Dr. John Mutunga, the trial court's conditional award was lower than the judicially accepted standards for severe burn injuries to minors. 68.The trial court's decision to deny special damages due to the lack of receipts is upheld, as it is a strict principle of Kenyan law that special damages must be specifically pleaded and strictly proved, a position supported by the Court of Appeal in Jennifer Nyambura Kamau v. Humphrey Mbaka Nandi (supra). 69.Ultimately, the trial court failed to properly weigh the evidential shift in the burden of proof. Once the appellant demonstrated that she was a minor under the total custody of the school and was injured by a fire within the school's premises, the evidential burden shifted to the respondents to show that they had executed their duty of care to the highest institutional standard. 70.They failed to discharge this burden and consequently, the appeal is allowed, the judgment and decree of the trial court dismissing Machakos SCCCC No. E160 of 2024 is hereby set aside. 71.Judgment be and is hereby entered in favour of the appellant against the respondents on liability at 100%. 72.The trial court's conditional assessment of general damages is varied upwards to a more reasonable sum of Kshs. 300,000 for the pain and suffering sustained by the minor, together with interest from the date of the trial court's judgment. 73.However, each party shall bear their own costs of this appeal and of the suit in the lower court. 74.Orders to issue accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 25TH DAY OF JUNE 2026A. N. ONGERIJUDGEIn the presence ofMiss Mutuku holding brief for Mr Mutava for the AppellantMomanyi for the RespondentChrispine - Court Assistant