https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10219

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT THIKA** **CIVIL APPEAL NO. E125 OF 2025** **DAVID AMUTSA OPIAYO…………………………………………………..** **APPELLANT** **VERSUS** **DAVID NJOROGE KAMAU……………………………………………….** **RESPONDENT** *(Being an appeal from the Judgment and Decree of Hon. M.W. Kamau, Resident Magistrate/Adjudicator, delivered on 17th April 2025 in the Small Claims Court at Thika in SCCC No. E1153 of 2024)* **JUDGMENT** **Introduction and Background** 1. On the night of 21st September 2024, at about 8.00 p.m., the Appellant, a pedestrian, was knocked down by motor vehicle registration number KBS 234Q, a Toyota Wish, at the Kiboko area along the Nairobi-Naivasha highway. The vehicle was being driven by the Respondent, who was travelling from Naivasha towards Nairobi. The Appellant sustained a deep cut wound to the occipital region and a blunt injury to the right ankle. The Respondent stopped, rushed the Appellant to hospital, and thereafter reported the accident to the police. 2. By a statement of claim dated 21st November 2024 filed in the Small Claims Court at Thika, being SCCC No. E1153 of 2024, the Appellant sought special damages of Kshs. 24,045, general damages, costs and interest. 3. The Respondent entered appearance and filed a response denying the material averments and pleading, in the alternative, that if the accident occurred at all, it was caused solely or substantially by the negligence of the Appellant himself. The date of the accident, originally pleaded as 22nd September 2024, was amended at the hearing, without objection, to 21st September 2024. 4. Three witnesses testified. PC Iddi Ndiege (CW1) of Tigoni Police Station produced the police abstract. He confirmed that the accident occurred, but conceded in cross-examination that he was not the investigating officer, that he never visited the scene, that the matter remained under investigation with no person charged, and that the abstract apportioned blame to neither party. He described the locality as densely populated, with neither a footbridge nor a designated crossing, and stated candidly that he could not tell whether the Appellant was running across the road at the material time. 5. The Appellant testified as CW2. His evidence-in-chief was that as he was crossing the road a vehicle came from behind and hit him on the right side, and that he only came to in hospital. In cross-examination, however, he stated that the accident occurred on a highway; that there is no pedestrian crossing or footbridge at the point where he crossed; that he ought to be careful when crossing a highway; that the Respondent’s vehicle was the only vehicle he saw on the road and yet, in his own words, *“I didn’t see vehicle”*; and, that *“I was walking quickly while crossing when vehicle hit me.”* 6. The Respondent testified as RW1. His account was that he was driving from Naivasha to Nairobi at about 8.00 p.m. to pick up his daughter; that the night was misty and it was raining; that he was driving at a moderate pace of about 50 km/h with his headlights on; that a vehicle approaching from the opposite direction had its full lights on, which blurred his vision; and that he heard a knock on his car, only to discover that he had hit a person. He stopped, took the Appellant to PCEA Kikuyu Hospital, met the treatment expenses, and reported to the police, telling them that he had caused the accident owing to poor visibility. He maintained that the Appellant ran across the road and was partially to blame. 7. In her judgment delivered on 17th April 2025, the learned trial magistrate, sitting as an Adjudicator, found that the Respondent did not deny ownership of the vehicle, that he was its driver on the material day, or that the accident occurred. She then weighed the two competing accounts of how it occurred and concluded as follows: *“Both parties have a duty to each other, as road users. There was no evidence that the Respondent left the road or that the collision happened outside the road. Therefore, it is the finding of the Court that the Claimant must have suddenly entered the road and is therefore contributorily liable. Given that the area was build up and the weather was misty, the Respondent should have been more mindful.”* Guided by ***Wakim Sodas Limited v Sammy Aritos (Civil Appeal 103 of 2016) [2017] KEHC 3427 (KLR)***, she apportioned liability equally between the parties, assessed general damages at Kshs. 200,000, allowed the proven special damages of Kshs. 5,550, and entered judgment for the appellant in the net sum of Kshs. 102,775 together with costs and interest. 8. Aggrieved, the Appellant lodged the memorandum of appeal dated 15th May 2025 raising four grounds, which may fairly be condensed as follows: that the trial court misapprehended the tenor and effect of the evidence on liability; that it apportioned 50% liability to the appellant despite there being no evidence supporting that apportionment; that it disregarded the Appellant’s submissions and authorities without reason; and that it failed to exercise its discretion judiciously. 9. The Appellant prays that the finding on liability be set aside and the Respondent be held wholly liable. **The Submissions** 1. For the Appellant, it was submitted that the Respondent, on his own admission, was driving on a road with which he was unfamiliar, in misty conditions, through a densely populated area where pedestrians habitually cross, and that a keen driver travelling at 50 km/h ought to have seen and avoided the Appellant, who was nearly done crossing when he was struck from behind. 2. Counsel invoked the standard of proof in **Miller v Minister of Pensions [1947] 2 All ER 372**, the duty of care of a driver in **Mary Njeri Murigi v Peter Macharia & Another [2016] eKLR** and **Masembe v Sugar Corporation and Another [2002] 2 EA 434**, and the elements of negligence in **Donoghue v Stevenson [1932] A.C. 562**, urging that the Respondent be found 100% liable. 3. For the Respondent, it was submitted that the apportionment rested on credible evidence and sound principle, and that an appellate court will not interfere with an apportionment of liability save in exceptional cases, reliance being placed on **Rentco East Africa Limited v Dominic Mutua Ngonzi [2021] eKLR** and the authorities cited therein. 4. Counsel further submitted that the police abstract was not conclusive proof of liability, citing **Kennedy Nyangoya v Bash Hauliers [2016] eKLR**, and that findings of fact are not to be disturbed unless based on no evidence or a misapprehension of the evidence, citing **Charles Ogolla Obiero v Joseph Munyambu Karega [2017] eKLR**. 5. Finally, counsel contended that the Respondent has since settled the decretal sum, and that the appeal has therefore been overtaken by events. **Analysis** 1. This being a first appeal, the ordinary starting point is the duty restated in **Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123**, at page 126, 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.”* 1. That duty is, however, materially circumscribed where the appeal originates from the Small Claims Court. Section 38(1) of the Small Claims Court Act, No. 2 of 2016, provides that: *“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. The re-evaluation this Court undertakes is therefore not at large. It is confined to interrogating whether the decision below discloses an error of law. What amounts to a “matter of law” was authoritatively delineated by the Supreme Court in **Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR**, where the third element identified by the Court is of particular moment here, namely: *“the conclusions arrived at by the trial Judge, where a party thereby alleges that such conclusion is based on ‘no evidence’, or that the said conclusion is not supported by the established facts or evidence on record, or that the conclusion is ‘so perverse’, or so illegal, that no reasonable tribunal would arrive at the same…”* 1. Viewed through that prism, the four grounds of appeal distil, in substance, into a single complaint of law: that the finding apportioning 50% of the liability to the appellant was unsupported by any evidence on the record. That is a complaint this Court has jurisdiction to entertain. Accordingly, three issues fall for determination: first, whether the appeal has been overtaken by events; secondly, whether the apportionment of liability in the ratio of 50:50 was based on no evidence or on a wrong principle, so as to constitute an error of law; and thirdly, what orders should issue as to costs. **Whether the Appeal has been Overtaken by Events** 1. The Respondent’s preliminary contention may be disposed of shortly. It was urged that because the Respondent has paid the decretal sum, the appeal is spent. With respect, that submission conflates satisfaction of a decree with extinction of appellate rights. A decree creates an immediate obligation; the trial court granted a stay of only thirty days. 2. A judgment debtor who pays does no more than obey the decree and forestall execution and the accrual of interest. Conversely, a decree-holder who receives payment of an award he considers inadequate is not thereby estopped from pursuing an appeal for more, unless it is demonstrated that he accepted the sum in full and final settlement of his claim and unequivocally elected to abandon the appeal. No such election was demonstrated here. The preliminary point fails, and the appeal must be considered on its merits. **Whether the Apportionment of Liability Discloses an Error of Law** 1. The gravamen of the appeal is the finding of contributory negligence. The nature of that defence was captured in **Nance v British Columbia Electric Railway Co. Ltd [1951] AC 601**, at page 611, where the Privy Council held that: *“…when contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such a defence is to prove … that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury.”* 1. The Respondent, having pleaded contributory negligence in the alternative, bore the burden of establishing that the appellant failed to take reasonable care for his own safety. The question is whether there was evidence on the record from which the trial court could so find. 2. It is convenient to begin where the Appellant begins: the police evidence. The abstract blamed neither party; the matter remained under investigation; and CW1 was neither the investigating officer nor did he visit the scene. Both parties, fittingly, invoked **Kennedy Nyangoya v Bash Hauliers [2016] eKLR**, where the High Court held that: *“Even if the police abstract indicated that DW1 was to blame for the accident, the said abstract was not conclusive proof of liability in the absence of evidence being called to support it…”* 1. CW1’s evidence usefully established the character of the locality, a busy, built-up stretch of highway with neither a footbridge nor a designated crossing, but it was, on his own concessions, neutral as to how the accident happened. The reconstruction of the accident therefore rested entirely upon the accounts of its two protagonists. 2. The Appellant’s account carried within it its own admissions. He was crossing a highway, at night, in misty conditions, at a point with no designated crossing. He was, by his own testimony, walking quickly. The Respondent’s vehicle was the only vehicle on the road, its headlights were on, and yet the Appellant did not see it at all before impact. 3. He further conceded that a person crossing a highway must exercise care. A pedestrian who hurries across a highway at night, in mist, without observing the only illuminated vehicle upon it, has not, on any view, kept the lookout that reasonable care for his own safety demands. 4. The Appellant attacks the trial court’s inference that he “must have suddenly entered the road” as speculation. An inference, however, is not speculation where it is anchored in established facts. The established facts were these: the collision occurred on the carriageway; there was no evidence that the Respondent’s vehicle left the road; the Appellant was crossing quickly; and he never saw the vehicle that struck him. 5. From those facts, the inference that the Appellant entered the path of the oncoming vehicle without keeping a proper lookout was one a reasonable tribunal was entitled to draw. That being so, the conclusion cannot be characterised as one based on “no evidence” within the meaning of Munya; and it is no part of this Court’s mandate, on a second-tier appeal confined to matters of law, to substitute its own preference on the facts. 6. Nor, it must be emphasised, did the trial court absolve the Respondent. It took his own admissions, the mist, the built-up locality, his report to the police that he caused the accident owing to poor visibility, and held them against him, finding that *“the Respondent should have been more mindful.”* That finding gives effect to the very principle the appellant invokes from **Masembe v Sugar Corporation and Another [2002] 2 EA 434**, namely that: *“When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment, and he is bound not to go faster than will permit his car at any time to avoid anything he sees after he has seen it…”* 1. A driver who proceeds through mist at night in a built-up area must moderate his speed to the limits of his vision, and to that extent the respondent was rightly found blameworthy. But Masembe does not carry the Appellant the whole distance he needs. It speaks to what a careful driver can see and avoid; it does not convert the driver into an insurer against pedestrians who enter the carriageway suddenly in conditions of poor visibility. Where, as here, both the driver and the pedestrian are shown to have fallen short of the care the law expects of each, the law’s response is apportionment not the assignment of the whole loss to one of them. 2. That leads to the apportionment itself. The apportionment of liability is a discretionary exercise with which an appellate court interferes only sparingly. In **Khambi and Another v Mahithi and Another [1968] EA 70**, it was held that: *“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.”* 1. In the same vein, the Court of Appeal in **Ephantus Mwangi and Another v Duncan Mwangi Wambugu [1982-88] 1 KAR 278**, as reiterated in **Charles Ogolla Obiero v Joseph Munyambu Karega [2017] eKLR**, held that: *“a Court of Appeal will not normally interfere with the finding of fact by the trial court unless it is based on no evidence, or on a misapprehension of evidence or a trial court is shown demonstrably to have acted on wrong principles…”* 1. Measured against those standards, the apportionment of 50:50 discloses no error. It was not plucked from the air; it was rooted in the sworn admissions of both protagonists. Nor was any wrong principle applied: the trial court correctly directed itself that both parties, as road users, owed duties of care to each other, identified the respects in which each fell short, and apportioned accordingly. 2. It may be that another tribunal, on the same evidence, would have fixed the ratio at some other figure. That, however, is precisely the species of second-guessing that Khambi forbids. An apportionment of equal blame between a driver who pressed on through mist and a pedestrian who hurried blind across a night-time highway cannot be branded manifestly erroneous. 3. There remains the complaint that the trial court disregarded the Appellant’s submissions and authorities. The record shows otherwise. The court expressly stated that it had *“duly considered”* the parties’ written submissions and the authorities attached to them, and its assessment of general damages was in fact fashioned upon authorities placed before it by the parties, including **Edward Mutevu Maithya & Another v Edwin Nyamweya [2022] eKLR**. 4. A court is not obliged to reproduce or rebut every submission made to it; it is obliged to consider them and to give reasons for its decision. Concise as they were, reasons were given. It bears remembering that the Small Claims Court is, by the design of its constitutive statute, enjoined to deliver justice that is simple, expeditious and proportionate to the value of the claims before it; the brevity of its judgments is a feature of that design and is not, without more, an error of law. 5. The third ground fails, and the fourth, that the discretion was not exercised judiciously, being wholly parasitic upon the others, falls with them. **Disposition** 1. The upshot of the foregoing is that the trial court’s finding on liability was grounded in the evidence, correctly directed in principle, and well within the range of a sound exercise of discretion. The appeal is devoid of merit. Consequently, this Court makes the following orders: (a)The appeal is hereby dismissed in its entirety; (b)The Judgment and Decree of the Small Claims Court at Thika in SCCC No. E1153 of 2024 delivered on 17th April 2025 are hereby affirmed; and (c)The costs of the appeal are awarded to the Respondent. 1. It is so ordered. **Dated and delivered at Thika this 9th Day of July, 2026.** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **BENARD WAFULA MURUNGA** **JUDGE OF THE HIGH COURT** *Delivered on virtual platform in the presence of:* *In the presence of:* *Spencer h/b for Njagi instructed by Mugendi Karigi for the Appellant* *Ms. Obwori instructed by Anne W. Kimani for the Respondent* *Kevin Babu - Court Assistant*