https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7097

Nzioka v Mwanzia (Civil Appeal E221 of 2023) [2026] KEHC 7097 (KLR) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 7097 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E221 of 2023 BM Musyoki, J May 22, 2026 Between Raphael Nzioka Appellant and Rose Mumbua Mwanzia Respondent (An appeal from judgment and decree of the Small Court at Machakos (Hon. M. Thibaru RM) dated 5-09-2023 in her civil claim number E361 of 2022) Judgment 1.This is an appeal from a Small Claims Court which by virtue of Section 38(1) of the Small Claims Court Act should be limited to matters of law only. The said Section 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.’ 2.The matter in the lower court was a claim for compensation for personal injuries arising from a road traffic accident which occurred on 18-01-2022 involving the appellant and the respondent’s tractor registration number KTCB 032Y. The trial court found that the appellant had not proved the aspect of negligence against the driver of the tractor and dismissed the claim with costs which decision prompted this appeal in which the appellant sets out the following grounds;1.That the learned Adjudicator erred in law by failing to consider the entirety of the appellant’s pleadings, evidence and witnesses.2.That the learned Adjudicator erred in law by grossly misapprehending the appellant’s evidence and witnesses and at the time elevating the evidence tendered by the respondent beyond what was proferred.3.That the learned Adjudicator erred in law by failing to consider the severity of injuries sustained by the appellant and the medical evidence availed and arriving at an award that was inordinately low. 3.Despite the memorandum of appeal indicating that the appeal is on matters of law only, this court has a duty to sieve through the parties’ dispute and contest as disclosed in their representations and identify the nature of issues raised. Whether of law or facts. If the court finds that there are no issues of law disclosed in the appeal, it must down its tools because without jurisdiction, the court has no basis of moving an inch further into the matter. 4.To put matters into perspective and in my effort to identify whether there are matters of law in the appeal, I will reproduce the short testimonies and evidence adduced by the parties. The appellant told the court that he was lawfully walking along Katooni-Vyulya road at Kongo area when the respondent or her driver drove motor vehicle registration number KTCB 032Y so negligently that she permitted it to lose control, veer off the road and hit him as a result of which he sustained severe injuries. He denied having hanged on the tractor and insisted that he was walking. 5.The appellant called one PC Dennis Oloo a police officer from Mwala traffic base who in addition to producing the police abstract and confirming that the accident occurred stated that, the tractor was towed to the police station. He also confirmed that he was not the investigating officer and he did not have the police file or the occurrence book and added that he was stating what the investigating officer told him. 6.On the part of the respondent, one Elijah Musyoki told the court that the accident occurred but he blamed the appellant for jumping in the vehicle without his permission. He stated that, while driving along the said road, the appellant who was unlawfully and without authorization hanging on the tractor jumped off while it was in motion. He denied that the police came to the scene and added that he was the one who reported and recorded statement immediately after the accident. He denied telling the police that the appellant was a pedestrian. 7.I have reproduced the above as the appellant has faulted the trial court for failing to consider and evaluate the evidence of his witnesses and elevating respondent’s evidence beyond what was proffered. It is an established principle that where appeals are limited to matters of law, the appellate court would be within its jurisdiction to deal with issues which may appear to be matters of facts if the trial court ignored material evidence in arriving at its decision or it made a decision which is perverse. The Court of Appeal held in Ahamad Abolfathi Mohammed & another v Republic [2018] KECA 743 (KLR), that‘We have anxiously considered this appeal and the authorities cited by the appellants and the respondent. As it is a second appeal, we are obliged, by dint of section 361 (1) (a) of the Criminal Procedure Code to consider only issues of law. Where the two courts below have made concurrent findings of fact, we are further obliged to respect those findings unless we are satisfied that the conclusions are not supported by the evidence or are based on a perversion of the evidence. This is a well-established principle and is aptly articulated in the authorities cited by the appellants such as Karingo v. Republic [1982] KLR 213. In M’Riungu v. Republic [1983] KLR 455, this Court was empathic that:[W]here a right of appeal is confined to question of law, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of fact and law and it should not interfere with the decision of the trial court or the first appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law”. 8.In this matter, the claim was dismissed for lack of proof of negligence against the respondent. The accident was admitted and contest was on which of the parties was to blame for it. I have gone through the evidence of the parties which has also been reproduced above. I have also gone through the judgment of the trial and in my opinion, I do not see any part of testimony or evidence or factor that the trial court ignored. I also cannot see any perversity in the judgment of the trial court. 9.The trial court considered the testimonies of parties and actually did an analysis of both oral and documentary evidence. The court also gave reasons for its decision and I do find that the complaint that the court did not give due consideration to the appellant’s evidence is not merited. Further, in his submission before me, the appellant has addressed his opinion on why the court should find the respondent liable but has not pointed out what portion of his evidence was ignored or not considered by the trial court. He has also not pointed out what portion of the respondent’s evidence was elevated beyond what was proffered. 10.In view of the above, it is clear to me that there are no issues of law raised in the appeal and therefore I have no jurisdiction to review or set aside the judgment of the trial court pursuant to Section 38(1) of the Small Claims Court Act.Consequently, this appeal is dismissed with costs to the respondents. DATED SIGNED AND DELIVERED AT NAIROBI THIS 22ND DAY OF MAY 2026.B.M. MUSYOKIJUDGE OF THE HIGH COURT.Judgment delivered in presence of Miss Muthoki holding for Mr. Mburu for the appellant and Mr. Ahenda holding brief for Mr. Ndumia for the respondent.