https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11508

***REPUBLIC OF KENYA*** ***IN THE HIGH COURT OF KENYA AT THIKA*** ***CIVIL APPEAL NO. E179 OF 2025*** ***PETER KURIA BURUGU…………………………………….……..APPELLANT*** ***-VERSUS-*** ***EDWARD MBURU GACHUI(suing as the*** ***legal Administrator of the Estate …..*** ***of the late RAHAB WANJIRU MBURU)……………….……..RESPONDENT*** ***(Being an Appeal from the judgment of Hon. Tawai, Adjudicator in Ruiru SCCC No. E599 of 2024 delivered on 20th June 2025]*** ***REPUBLIC OF KENYA*** ***IN THE SMALL CLAIMS COURT AT RUIRU*** ***SCCC NO. E599 OF 2024*** ***EDWARD MBURU GACHUI…………………………………….……………. CLAIMANT*** ***-VERSUS-*** ***PETER KURIA BURURU…………………………………………………..RESPONDENT*** ***JUDGMENT*** **BACKGROUND** 1. This Appeal is against the judgment delivered by Hon. Tawai Jacklyne Khalimesi on **20th June 2025** emanating from a material damage suit by the Respondent against the Appellant for the loss and damage occasioned through a Road Traffic Accident that took place on the 10th August 2024 involving Motor Vehicle Registration No. **KBC 141L** driven by the Respondent’s driver and motor vehicle registration number **KBT 866H,** under the care of the Appellant. 2. The Respondent blamed the occurrence of the accident on the negligence of the Appellant’s driver for ramming onto the Respondent’s motor vehicle. 3. Upon the conclusion of the hearing, the trial Magistrate, entered judgment for the Respondent against the Appellant at 100% liability and dismissed the Appellant’s counterclaim. 4. The Appellant, dissatisfied with that finding has filed the instant appeal, which is consolidated with **Thika HCCA E182 of 2025** (for purposes of submissions on the Appeal)and put forward the following grounds of Appeal: - 1. ***THAT the learned magistrate erred in fact and in law by*** ***in disregarding the submissions and judicial authorities*** ***cited as relates to liability the Appellant was subjected to.*** * 1. ***THAT the learned trial magistrate erred in fact and in law by finding that the Appellant was 100% liable for the loss incurred by the Respondent.*** 2. ***THAT the learned trial magistrate erred in fact and in law by finding that the Appellant was 100% liable in the circumstances despite the Appellant having discharged its burden of proof as required under section 107(1) of the Evidence Act.*** 3. ***THAT the learned trial magistrate erred in fact and in law in dismissing the Counterclaim by the Appellant despite the Appellant proving his case.*** 1. The Appellant thus prayed that this court be pleased to set aside the judgment of the trial court and that the court does its own fresh assessment of the evidence as regards the liability and review the finding of the court on the counterclaim and find that the Appellant had discharged its burden on a balance of probabilities. **Submissions by the Appellant** 1. The Appellant submitted that the trial court erred in holding the Appellant 100% liable for the accident and yet did not give the reasons for that finding. The Appellant submits that the court did not consider its evidence and invited this Appellant court to re -evaluate the evidence of the trial court and come to an independent finding. Counsel referred the court to it’s duty and placed reliance on the case of **Selle & Another vs Associated Motor Boat Company & Others, [1968] EA 123,** which basically mandates the court to 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. 2. The Appellant further faulted the trial court for relying on the testimony of the police officer arguing that the officer was not an eye witness and did not produce the sketch plans and further that the police abstract indicated that this was a matter under investigations. 3. Counsel submitted that the Respondent had not discharged the burden of proof as required under Section 107 and 109 of The Evidence Act, stating that the only eye witness to the case was the Appellant. **Submissions by the Respondent** 1. The Respondent submitted that all the grounds of Appeal as pleaded by the Appellant are matters of fact that this Court has no jurisdiction to handle. According to the Respondent, under Section 38 of the Small Claims Act, the Appeal should be only on matters of law. 2. The Respondent further submitted that the Decree of the trial court is not part of the Record Appeal and according to the Respondent, the Appeal is fatally defective. Counsel for the Respondent submitted that the Appeal is not at all merited and prayed to have the same dismissed with costs. **Analysis and Determination.** 1. As properly submitted by the Respodents, appeals from the Small Claims Court are governed by Section 38 (1) of the Small Claims Court Act, 2016, and are only on matters of law. I have considered the trial court decision, the grounds of Appeal and the submissions by the parties and the following are the issues for determination: - 1. Whether the Appeal herein meets the threshold laid down under Section 38 (1) of the Small Claims Act, 2016 2. Whether the Appeal is fatally defective for failure to attach the decree 3. Whether the Appeal has any merits 2. ***Whether the Appeal herein meets the threshold laid down under Section 38 (1) of the Small Claims Act, 2016*** 3. From the onset, Black’s Law Dictionary has the following definition of a matter of fact and a matter of law. * 1. **Matter of fact: A matter involving a judicial inquiry into the truth of alleged facts.** 2. **Matter of law: A matter involving a judicial inquiry into the applicable law.”** 1. I have considered the grounds of Appeal as laid down on the Memorandum of Appeal. Ground 1 is that the learned magistrate erred in fact and in law by in disregarding the submissions and judicial authorities cited as relates to liability the Appellant was subjected to. 2. The question as to whether the trial court disregarded submissions is a matter of fact. It would require this court to literally peruse through the trial court submissions to find whether the submissions were considered. The ground also states that the disregard was when determining liability. The disregard was not on the applicable law, but on the evidence availed in court to assist in determining the liability question. 1. Similarly ground 2 and 3 are in respect of the finding of the court in liability. In fact, counsel went on to submit on the testimony of the police officer and the contents of the police abstract as well as the testimony of the Appellant. These are again matter of fact regarding what was stated in court and how the trial court analysed the evidence. 1. The last ground challenges the finding of the court on the counterclaim. Again the finding is based on the analysis of the evidence and not the law. In fact, the argument of the Appellant is that the RW1’s evidence was the only direct evidence as the testimony of the Claimant’s witnesses was hearsay. This again is a matter of fact. 2. As stated by the court in ***David vs Nutrimatrix Enterprises Ltd (Civil Appeal E246 of 2024,*** the court stated ……… “***the grounds as raised by the Appellant touch on matters of facts which will require this court to scrutinize and re-evaluate the evidence. Section 38 bars appeals from small claims court on matters of fact…***” My finding is that the grounds raised on this Appeal are on matters of fact and therefore cannot meet the threshold set down under Section 38 (1) of the Small Claims Court Act. 3. And that being the case, this court has no jurisdiction to interrogate the trial court’s finding on fact as the Appellant has requested this court to. Indeed, the findings of the trial court on matters of fact, are to be accepted by this court as they are, in this kind of Appeals, as was held in the case of ***Murage v Lesedi Developers Limited (Civil Appeal 196 of 2023) [2024] KEHC 8882 eKLR)*** where the court stated:- ***“…*** *It therefore follows that in appeals originating from the Small Claims Court to this court, the court can only entertain appeals limited to points of law in terms of Section 38(1) of the Small Claims Court Act. It therefore follows that the trial court’s findings on the question of fact are to be accepted by this court unless it is demonstrated to this court that the trial court’s conclusions on those facts are so perverse, to warrant the attention of this court, exercising its appellate jurisdiction under the law.* 1. Further in ***IEBC & Anor vs. Mutinda & 3 others civil appeal no. 219 of 2013*,** the Court of Appeal held as follows: - *“Those points in an appeal of the kind before us, being from an election court’s decision, are further circumscribed by Section 85A of the Elections Act which limits appeals to the Court of Appeal to matters of law only. It is therefore quite strange and improper that each of the seventeen grounds, without exception, commences with a standard expression “the judge erred in fact and law” or “the learned Judge erred in law and in fact.” Clearly the drafters of the memorandum did not have the legal provision in active contemplation. Had they done so, they would have found that by invoking factual errors, they were inviting jurisdictional objections to their entire appeal.”* 1. In the instant Appeal, the grounds listed by the Appellant, from even a casual look reveal that they all commence with *“the trial magistrate erred in law and in fact…*which is a clear illustration that the Appellant is inviting the court to consider and evaluate the Appeal even on matters of fact, which is contrary to the provisions of Section 38 (1) of the Small Claims Court Act. This is fortified by the Submissions of the Appellant, inviting the court to be guided by the principles in the case of ***Selle*** (Supra), to reconsider the evidence, evaluate it itself and draw its own conclusions. 2. I will hold that this court has no jurisdiction to deal with the grounds set out in the Memorandum of Appeal herein, being grounds based majorly on facts. My finding is that the Appeal herein does not meet the threshold of Section 38 (1) of the Small Claims Court Act and therefore it cannot succeed. 3. ***Whether the Appeal is fatally defective for failure to attach the decree*** 4. I have considered the submission by the Respondent on the failure to include a copy of the decree on the Record of Appeal. I am also alive to the two court of Appeal decisions on the issue, which appear to be contradictory. This is the authority cited by the Respondent herein - ***Salama Beach Hotel Limited & 4 others v Kenyariri & Associates Advocates & 4 others [2016] eKLR,*** which supports the proposition that it is fatal not to attach a decree to the record of Appeal and the other being ***Emmanuel Ngade Nyoka vsKitheka Mutisya Ngata (2017) eKLR*,** which states that the omission is curable and that it is not a fatal omission. I am of the school of thought that believes that since there is already a Judgment on the record of Appeal, then an Appellate court is clear on the particular orders being appealed against and has an opportunity to render substantive justice rather than basing an appeal on the technicality of the inclusion of a decree in the Record of Appeal. 5. And based on that, my view is that the failure to include a decree in the record does not necessarily make the proceedings fatally defective, but it is a regrettable omission that can be cured. 6. ***Whether the appeal is merited*** 7. It is trite law that an Appellate Court would not interfere with the findings of a trial court on liability unless the finding is based on an error in principle or the apportionment is manifestly erroneous. In the case of ***Khambi &Another vs Mahithi & Another [1968] EA 70*** where the court 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 circumstances, 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. The trial court considered the evidence adduced before it by both parties and concluded that the evidence of the Claimant was not controverted and based on that evidence, apportioned liability. The trial court considered the point of impact, which was the rear of the Respondents motor vehicle and found that the Appellant was to blame. No reason has been given to this court to indicate that there was an error in principle or the apportionment to justify the interference with the findings of the trial court. 2. In any event, what the Appellant is asking this court to do is to interrogate the evidence and matters of fact afresh, which this court has found, to be contrary to Section 38 (1) of the Small Claims Act. I find no reason to interfere with the findings of the trial Court in the circumstances. 3. **The upshot of the matter is that the Appeal does not meet the threshold set in Section 38 (1) of the Small Claims Act and has no merits whatsoever. It is dismissed with costs to the Respondent.** **JUDGMENT** delivered, dated and signed virtually at Nairobi **24th** day of **July**, 2026. **…………………………..………………** **L. M. WACHIRA** **JUDGE** **In the Presence of:** Leadys *-* Court Assistant Ms. Sheikh for the Appellant. Ms. Spenza for the Respondent.