Mwangi v Murithi (Civil Appeal E096 of 2024) [2026] KEHC 11341 (KLR) (23 July 2026) (Judgment)

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **CIVIL APPEAL NO. E096 OF 2024** **SAMUEL MUGIRA MWANGI………………...………….……………..APPELLANT** **VERSUS** **IAN NJINE MURITHI..…………………….…………………………..RESPONDENT** **(Being an Appeal from the Judgment of Honorable S.K Manyura (R.M) delivered on 18/7/2024 at Kerugoya Small Claims Court No. E044 of 2024)** **JUDGMENT** 1. By a statement of claim dated 2/7/2024, the Appellant sued the Respondent seeking special damages of Ksh. 21,950, compensation and costs of the claim. The Appellant pleaded that on 24/12/2023, at Marumbaru area along Embu-Mwea road, he was lawfully driving motor vehicle registration No. KAK 444 M, when the Respondent’s authorized driver, agent, servant and/or employee so negligently, carelessly and/or recklessly drove Motor Vehicle Registration No. KDD 089 T that it lost control, thereby occasioning the Appellant serious injuries. 2. The Respondent filed his Response to the statement of claim dated 10/7/2024, denying the claim, and prayed for its dismissal. 3. Upon full hearing of the claim, the trial court apportioned liability at 50% and awarded the Appellant general damages of Ksh. 700,000 and special damages of Ksh. 21,950 together with costs plus interest. **The appeal** 1. On appeal, the Appellant vide his memorandum of appeal dated 16/8/2024 set out 3 grounds as follows: 1. *The Learned Trial Magistrate erred in law and fact in apportioning 50:50% on liability against the appellant without any basis and failing to properly take into account the evidence tendered in support of the Appellant’s claim therefore arriving at a wrong conclusion.* 2. *The learned Trial Magistrate erred in law and fact by finding that the appellant contributed to the occasion of the accident by failing to conduct a proper analysis of the facts, documentary evidence, written submissions and the binding authorities made on behalf of the appellant thus leading to a miscarriage of justice.* 3. *The learned Trial Magistrate erred in law and fact by applying wrong and inapplicable principles of law which did not form part of any basis to warrant her determination on liability.* ***Duty of the Court*** 1. This being a first appeal, this court is duty bound to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing the witnesses testify. (See **Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123**). **Oral Evidence** 1. **CW1 Dr. G.K. Mwaura**, produced the medical report and the receipt as exhibits. He testified that, *“On 15.4.2024 where I examined Samuel Mugera Mwangi involved in RTA on 24.12.2023. He sustained soft tissue injuries and grievous harm injuries. He received treatment at Kerugoya Level 5 hospital. He had pain, healing is not complete, he had pain in right thigh and could not walk well. I prepared medical report and not treatment.”* 2. On cross examination, he stated that, *“Claimant sustained injury of grievous harm where he had a fracture which is found under heading of “present findings II on page 2 of the report. I only attend to the witness through medical report. I relied on three documents: 1). Interviewed the claimant. 2). History he had 2 set of documents - P3 form and discharge summary from Kerugoya hospital that he had which I went through. 3). I then examined him.”* 3. **CW2 P.C. Gloria Karuru**, attached at Wang’uru police station Traffic duties produced the OB and Abstract as exhibits. She testified that, *“The report was booked as OB/07/24/12/2023 at 0330 hrs as a serious road injuries. RTA occurred at Murubara area along Embu Mwea road. One Ian was driving KDD 089 T heading from Embu general direction to Mwea general direction and on reaching the accident area i.e Murubara area, he lost control of the motor vehicle swayed to the right side of road hitting KAK 444 M which was being driven from opposite direction. KAK 444 M which was being driven by claimant. As result of impact claimant was injured on right leg and female passenger was also injured on both arms. They were rushed to Kerugoya hospital. Scene was visited by police and necessary action taken. From abstract P.C Mose was the I.O. who I used to work with. I also wish to state my cost that I have been facilitated of Ksh. 5,000/=.”* 4. On cross examination, she stated that, *“There was an unknown female passenger. According to OB there was an unknown female passenger. We did not take the female passenger to hospital. I am not the I.O. in this matter. I have produced according to O.B number. I did not witness the accident. O.B. Number was booked at 0550 hrs but accident occurred at 0330 hrs. I am not abandoning my earlier testimony that accident was booked at 0330 hrs. I do know the distance from the scene of accident to the police station and how long it will take. I cannot tell if driver of KDD 089 T has been charged because I am not the I.O. I do not know if there photos of scene because I am not the I.O.”* 5. In re-examination, she stated that, *“Motor vehicle KDD is being blamed for accident because it swayed from it’s side of KAK 444 M.”* 6. **CW3 Samuel Mugira**, the Appellant herein adopted his witness statement as his evidence in chief and produced the list of documents dated 24/5/2024 as exhibits. He testified that, *“I live in Kimunye. I am a mechanical engineering technician. I am the claimant. On the date of accident I was heading to Kutus from Mwea along Nrb - Meru highway along Murubara area when KDD decided to overlap two vehicles and was coming at very high speed to avoid head on collision, it hit me on my right side of the door. As a result of RTA, I was hit on my right leg where I sustained injury on tibia, my forehead and chest. I was admitted at Kerugoya hospital for 4 days. I have not fully recovered because I cannot walk, I walk on crutches or carry heavy load because of my chest rib cage not well recovered and I have constant headache on right side where I was hit. I blame driver of KDD 089 T. I pray prayers as per the claim.”* 7. On cross examination, he stated that, *“My speed was 40 - 60 km/h at the time of accident. Accident was at Murubara area. I am not aware of any charge for reckless driving for driver of KDD 089 T. No alcohol blow was test against me. No I was not driving under influence.”* 8. In re-examination, he stated that, *“I do not take alcohol. I was driving at speed of 40-60 km/h as there was a bit of traffic.”* 9. The Respondent closed his case without calling any witnesses. **Submissions** 1. The Appellant faults the trial court for failing to consider his evidence on the occurrence of the accident, and cites ***Miller v Minister of Pensions [1947] 2 ALL. ER 372, Mbaka Nguru & Anor. v James George Rakwar [1998] eKLR and Haybourhill v Young (1942) 2 ALL ER 396***. He maintains that the Respondent’s failure to testify as to the occurrence of the accident rendered his pleadings mere statements of fact that were not substantiated, and cites ***Trust Bank Ltd v Paramount Bank Limited & 2 Others (2009) eKLR, Peter Ngigi & Another (suing as legal representative of the Estate of Joan Wambui Ngigi) v Thomas Ondiki Oduor & Another (2019) eKLR and Donoghue v Stevenson [1932] A.C. 562***. He urges that the Respondent had a duty of care to ensure that the subject motor vehicle was driven at a reasonable speed to avert the occurrence of the accident, and cites ***Nandwa v Kenya Kazi Ltd [1988] KLR 488 and Regina Wangechi v Eldoret Express Co. Ltd [2008] eKLR***. He urges the court to hold the Respondent 100% liable for the accident, and cites ***William Kabogo Gitau v George Thuo & 2 others [2010] eKLR***. 2. The Respondent urges that the appeal was not on matters of law, as strictly provided under Section 38 of the Small Claims Court Act, and cites ***King’ara v Independent Electoral and Boundaries Commission & 2 others [2014] KECA 886 (KLR) and Wachira v Mwai (Civil Appeal E022 of 2023) [2024] KEHC 3173 (KLR) (15 March 2024)***. He urges that the production of a police abstract alone without police investigation report cannot prove negligence on his part, and cites ***Springboard Capital Limited v Njenga & another (Civil Appeal 14 of 2024) [2024] KEHC 7013 (KLR) (14 June 2024) (Judgment), Crown Petroleum Kenya Ltd & 3 others v Anderson Sumata Saoli and 7 others (2019) eKLR, Wangongu v Kithinji & 2 others (Civil Appeal 293 of 2023) [2024] KEHC 6272 (KLR) and United Millers Limited v Tom Maina Sarara [2020] KEHC 1105 (KLR).*** He cites ***Changa v Satari (Civil Appeal E018 of 2022)[2073]KEHC 19129 (KLR) (27 June 2023) (Judgment)*** in urging the court to find that the trial court’s equal apportionment of liability was proper. **Analysis and determination** 1. From the grounds of appeal as framed, the sole issue for determination is whether the apportionment of liability equally between the parties was proper. 2. Before delving into the merits of the appeal, the question whether the appeal is strictly on points of law, as decreed under Section 38 of the Small Claims Court Act, has been raised. 3. The significance of minute consideration of the evidence in an appeal from a Small Claims Court is manifest from the provisions of section 38 (1) and (2) of the Small Claims Court Act that an appeal lies to the High Court on a point of law and that the decision is final, as follows: ***“(1) 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) An appeal from any decision or order referred to in subsection (1) shall be final.”*** 4. It is trite that an appeal on a matter of law includes the inquiry whether the conclusions of the trial court are sound on the evidence availed before it and, therefore, with respect to counsel for the Respondent, this involves the re- evaluation of the evidence. In ***King’ara v Independent Electoral and Boundaries Commission & 2 others [2014] KECA 886 (KLR)***, the Court of Appeal *(Visram, Koome (as she then was) & Odek, JJ.A.)* after considering the authorities held: ***“Having established that we have jurisdiction to determine only issues of law as per the provisions of Section 85A of the Elections Act, to us the whole question of whether the trial Judge properly considered and evaluated the evidence and arrived at a correct determination that is supported by law and evidence with of course the usual caveat, that we did not see the witnesses demeanor is an issue of law.”*** 1. Similarly, in ***Stanley N Muriithi & another v Bernard Munene Ithiga [2016] eKLR***, the Court of Appeal *(Waki, Karanja & Kiage, JJ.A)* observed thus: ***“We hasten to observe, however, that failure on the part of the first appellate court to re-evaluate the evidence tendered before the trial court and as a result, arriving at the wrong conclusion is a point of law.”*** 1. On the merits, CW2testified that, ***“One Ian was driving KDD 089 T heading from Embu general direction to Mwea general direction and on reaching the accident area i.e Murubara area, he lost control of the motor vehicle swayed to the right side of road hitting KAK 444 M which was being driven from opposite direction. KAK 444 M which was being driven by claimant.”*** She was categorical in re-examination that, ***“Motor vehicle KDD is being blamed for accident because it swayed from it’s side of KAK 444 M.”*** 2. The Appellant testified that, ***“On the date of accident I was heading to Kutus from Mwea along Nrb - Meru highway along Murubara area when KDD decided to overlap two vehicles and was coming at very high speed to avoid head on collision, it hit me on my right side of the door. I blame driver of KDD 089 T.”*** On thorough cross examination, he maintained that he was driving between 40 - 60 km/hr and vehemently denied driving under the influence. In re-examination, he stated that, ***“I do not take alcohol.”*** 3. The Respondent elected to close his case without calling any witnesses, and therefore his defence remained bare and devoid of evidentiary support. In ***Trust Bank Limited v Paramount Universal Bank Limited & 2 others [2009] KEHC 4030 (KLR)***, cited by the Appellant, the court *(Lesiit J, as she then was)* reiterated that; ***“It is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. The 2nd Defendant and 3rd Defendant’s defence were unsubstantiated and remained mere statements. In the same vein failure to adduce any evidence meant that the evidence adduced by the Plaintiff against the 2nd and 3rd Defendants was uncontroverted and therefore unchallenged.”*** 1. The Appellant and CW2 were categorical that the Respondent, veered from his lane into the Appellant’s lawful lane, thereby causing the accident. That evidence was neither shaken nor materially challenged on cross examination. More importantly, the Respondent’s cross examination was largely centered on the allegation that the Appellant had been driving under the influence, which was vehemently refuted. 2. This court finds that there was only one uncontroverted version of how the accident occurred. In the absence of any evidence attributing negligence to the Appellant, the trial court fell into error in apportioning liability equally between the parties. 3. This court is satisfied that the finding on liability was not only against the weight of the evidence adduced but also amounted to a misdirection, and there is, therefore, a basis to interfere. **ORDERS** 1. Accordingly, for the reasons set out above, the Court finds the Appellant’s appeal is merited, and it is allowed in the following terms: 1. The trial court’s apportionment of liability at 50:50 is set aside and substituted with a finding that the Respondents shall bear 100% liability. 2. The Respondent shall pay the costs of the appeal to the Appellant. *Order accordingly.* **DATED AND DELIVERED THIS 23RD DAY OF JULY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** M/S Mugendi karigi & Co. Advocates for for Appellant. M/S Hashim & Lesaigor Associates Advocates for the Respondent.