Millers v Amon (Civil Appeal E712 of 2023) [2026] KEHC 7193 (KLR) (Civ) (25 May 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPELLATE DIVISION** **HCCA NO. E712 OF 2023** **MOMBASA MAIZE MILLERS………………………………..……….APPELLANT** **VERSUS** **JOSEPH NJIHIA AMON..…………………………..………..….. RESPONDENT** *(Being an Appeal from the Judgment of Hon. J.W. Munene (Adjudicator/RM) in Milimani SCCC No. 3545 of 2022 delivered on 26th May, 2023))* **JUDGMENT** 1. The Appellant was sued in Milimani SCCC No. E3545 of 2022 by the Respondent who was seeking Special damages in the sum of Ksh. 367,300 in respect of damages to the Respondent’s motor vehicle registration No. KCP 116S which was involved in a road traffic accident with motor vehicle registration No. KCQ 997S belonging to the Appellant. 2. The Respondent’s evidence was that he was driving his motor vehicle registration No KCP 116S from Donholm towards Muthurwa when the Appellant’s motor vehicle Registration No. KCQ 997S which was coming from the opposite direction veered off its lane and hit the Respondent’s motor vehicle. 3. The Appellant said it was motor vehicle Registration No. KCP 116S which left its lane while trying to overtake another motor vehicle and it caused the collision. 4. The trial Court found that the Appellant did not call any witness in support of his case and held it 100% liable. 5. The trial Court entered judgment against the Appellant in the sum of Ksh. 367,250/= in respect of Special damages with costs and interest at court rates. 6. The Appellant has appealed against the said Judgment on the following grounds:= 7. ***That the learned Adjudicator erred in law and in fact in apportioning liability at 100% against the 1st Respondent/Appellant herein.*** 8. ***That the learned Adjudicator erred in law and in fact in entering judgment against the 1st Respondent/Appellant herein for special damages of Ksh. 367,250/= in the absence of strict proof.*** 9. ***That the learned Adjudicator erred in law and in fact in failing to consider the testimony and evidence of RW1 on record and photographs of the accident scene produced, indicating that the Claimant’s motor vehicle Registration No. KCQ 997S encroached on the lawful lane of the 1st Respondent’s motor vehicle Registration No. KCP 116S thereby causing the accident.*** 10. ***That the learned Adjudicator erred in law and in fact in failing to appreciate or consider the written submissions of the 1st Respondent/Appellant herein and authorities cited on liability and quantum.*** 11. ***That the learned Adjudicator erred in law by writing a judgment that is not based on proper evaluation of the pleadings and evidence on record of the 1st Respondent/Appellant herein.*** 12. ***That in the circumstances, the Judgment of the learned Adjudicator is a miscarriage of justice.*** 13. The parties filed written submissions as follows: The appellant stated in its submissions that the trial court erred in apportioning 100% liability against them based on the respondent’s version of a road traffic accident, while ignoring key evidence from the appellant’s driver and photographs showing that the respondent’s vehicle had encroached into the appellant’s lane. 14. The appellant contends that the respondent failed to discharge the burden of proof on a balance of probabilities, as the police abstract alone, without supporting investigation details or testimony from the investigating officer, was insufficient to establish negligence. 15. Citing case law such as **Khambi and Another v. Mahithi** and Another and **Florence Mutheu Musembi v. Francis Karenga,** the appellant urges the High Court, as the first appellate court, has to re-evaluate the evidence independently, set aside the lower court’s finding on liability, and substitute it with a fair apportionment or dismissal of the claim. 16. The Respondent on his part argued that the appeal filed by Mombasa Maize Millers Limited should be dismissed as it is incomplete and incompetent, primarily because the record of appeal lacks crucial documents such as trial court proceedings, a certified copy of the judgment, and the decree. 17. The Respondent notes that despite multiple court mentions since 2024, the Appellant has failed to file a complete record, and on 23rd October 2025, the Appellant’s counsel misrepresented having done so. 18. Without a full record, the Respondent contends the appellate court cannot properly review the trial court’s findings, rendering the appeal hollow. 19. On the merits, the Respondent defends the trial court’s decision to hold the Appellant wholly liable for the accident, arguing that the Respondent’s testimony, supported by photographs and a police abstract, proved the Appellant’s negligence, while the Appellant’s witness gave contradictory evidence. 20. The Respondent submits that liability is a finding of fact, and appellate courts should not interfere unless the finding is plainly wrong or unsupported by evidence. 21. Regarding special damages of KShs. 367,250/-, the Respondent states that the amount was specifically pleaded and strictly proved through receipts, invoices, and a repair assessment report, and the Appellant presented no contrary evidence. 22. Finally, the Respondent argues that the trial court properly considered all pleadings and evidence, and the mere fact that not every cited authority was reproduced in the judgment does not constitute an error. 23. The Respondent therefore prays that the appeal be dismissed with costs and the lower court’s judgment upheld. 24. This being an appeal from the small claims court, the same can only be entertained on points of law. 25. The issues for determination in this appeal are as follows; 26. ***Whether this appeal, emanating from the Small Claims Court, is properly before this court as an appeal on matters of law only.*** 27. ***Whether the trial Adjudicator erred in law in apportioning 100% liability against the appellant.*** 28. ***Whether the trial Adjudicator erred in law in awarding special damages of Kshs. 367,250.*** 29. On the first issue, Section 38(1) of the Small Claims Court Act, No. 2 of 2016, provides that a person aggrieved by a decision or order of the Small Claims Court may appeal against that decision or order to the High Court on matters of law. 30. A decision is erroneous in law if it is one to which no court could reasonably arrive at and where an appeal raises only issues of fact, the High Court lacks jurisdiction to entertain it. 31. The appellant herein has raised grounds challenging the apportionment of liability, the strict proof of special damages, and the alleged failure by the trial court to consider the appellant’s evidence and submissions. 32. The evaluation of evidence to determine liability is a question of fact, but the application of legal principles to those facts, such as the burden of proof under Sections 107, 108, and 109 of the Evidence Act (Cap 80) and the Traffic Act, constitutes a question of law. 33. An appeal against an award of liability is both factual and lawful because it begins with the fact of what occurred before it is tested with clear provisions of the law, and if the lower court does not align facts with the law, the High Court has jurisdiction to tamper with its findings. 34. Therefore, this court finds that the appeal raises arguable points of law and is properly before this court for determination. 35. On the second issue, the respondent’s evidence was that he was driving his motor vehicle from Donholm towards Muthurwa when the appellant’s motor vehicle coming from the opposite direction veered off its lane and hit him. 36. The appellant’s case was that it was the respondent’s motor vehicle that left its lane while trying to overtake another motor vehicle, causing the collision, and the appellant called a witness and produced photographs of the accident scene in support. 37. The trial court found that the appellant did not call any witness in support of his case and held him 100% liable, which is a clear misapprehension of the evidence on record because the record shows that the appellant did indeed call a witness, RW1, who testified and was cross-examined. 38. The trial court’s failure to consider the testimony of RW1 and the photographs produced constitutes an error of law. 39. A police abstract alone, without supporting investigation details or testimony from the investigating officer, may be insufficient to establish negligence, especially where the defence has attributed specific acts of negligence to the claimant. 40. In the present case, the respondent did not call the investigating officer or produce a sketch plan. The appellant, on the other hand, called his driver and produced photographs which, if believed, would show that the respondent’s vehicle encroached into the appellant’s lane. 41. The trial court’s finding that the appellant did not call a witness was a clear error of fact that led to an erroneous conclusion on liability. 42. Therefore, the trial court failed to properly evaluate the evidence as required by law, and this court is entitled to interfere with the finding on liability. 43. Having re-evaluated the evidence, it is apparent that both parties blame each other for the accident. In the absence of an independent witness such as the police officer who investigated the accident or a clear sketch plan showing the point of impact, it is difficult to apportion liability solely on one party. 44. The appellant’s driver gave evidence that the respondent was trying to overtake and encroached into his lane, while the respondent maintained that the appellant’s driver veered off his lane. In the interest of justice, liability should be apportioned equally at 50% as against the appellant and 50% as against the respondent, 45. The third issue for determination is in the absence of strict proof. Special damages must not only be specifically pleaded but also strictly proved. 46. The respondent pleaded special damages in the sum of Kshs. 367,300 and produced receipts, invoices, and a repair assessment report as exhibits. 47. The appellant did not present any contrary evidence challenging the quantum of the repairs. 48. The evidence on record shows that the respondent proved his special damages to the required standard. 49. The respondent herein discharged that burden. Accordingly, the award of Kshs. 367,250 in special damages is upheld. 50. However, this award shall be subject to the apportionment of liability, and the appellant shall be liable for 50% of the same, amounting to Kshs. 183,625. 51. In conclusion, this appeal partially succeeds. 52. The judgment of the trial court in Milimani SCCC No. 3545 of 2022 is set aside on liability only. 53. This court substitutes the finding on liability with a finding that the appellant and the respondent are each liable at 50% for the accident. 54. The award of special damages in the sum of Kshs. 367,250 is upheld. Consequently, judgment is hereby entered in favour of the respondent against the appellant for the sum of Kshs. 183,625 (being 50% of Kshs. 367,250). 55. The respondent shall have interest on the said sum at court rates from the date of the judgment of the trial court until payment in full. 56. Each party shall bear their own costs of this appeal, given the partial success, but the respondent is awarded costs of the trial court. 57. Orders to issue accordingly. **Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 25th day of May, 2026.** **………….…………….** 1. **N. ONGERI** **JUDGE** **In the presence of:** Miss Gichimu the Appellant No appearance for the Respondent Ubah – Court Assistant