https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7686

Kagiri v Irungu & another (Civil Appeal E067 of 2024) [2026] KEHC 7686 (KLR) (4 June 2026) (Judgment) Neutral citation: [2026] KEHC 7686 (KLR) Republic of Kenya In the High Court at Thika Civil Appeal E067 of 2024 TW Ouya, J June 4, 2026 Between Simon Njirani Kagiri Appellant and Grace Wangari Irungu 1st Respondent Simon Kahihia Kahura 2nd Respondent (Being an appeal from the Judgment/decree of Hon. J.K. Tawai RM/ Adjudicator delivered on 4th March 2024 in Ruiru Small Claims Court Claim No. SCC/E045 of 2023) Judgment Introduction: 1.The Appellant filed a suit in the small claims court alleging that a road traffic accident occurred on 18th March 2023 whilst driving motor vehicle registration number KBP 123X when the 1st Respondent’s authorized driver agent, servant and/or employee so negligently drove, managed and/or controlled motor vehicle KCF 149Z in a manner that it hit Appellant’s motor vehicle KBP 123X damaging it extensively. The Appellant claimed Kshs. 268,3990. 2.The 1st Respondent admitted that the said accident did occur but denied the averments in the statement of claim. 3.The suit proceeded to full hearing. At the conclusion of the hearing, the magistrate found the 1st Respondent 100% liable and the 2nd Respondent vicariously liable. The court further held that the Appellant did not plead particulars of negligence and had therefore not proved his case on a balance of probability. 4.Aggrieved by the trial court’s finding, the Appellant is challenging the judgment on the following grounds:i.The learned magistrate erred in law by failing to consider and apply the Law on exclusion of strict rules of evidence enshrined in Section 32 of the Small Claims Act No. of 2016 and Rule 31 of the Small Claims Rules, 2019 to the Statement of Claim that was filed by the Appellant.ii.That the learned magistrate erred in law by failing to consider and apply the law on liability in tort in respect of loss or damage of property enshrined in Section 12(1)(c) the Small Claims Act No. 2 of 2016 and Rule 5 (1) of the Small Claims Rules, 2019 to the Motor Vehicle Assessment Report and Receipts accompanying the Statement of Claim by the Appellant.iii.The learned magistrate erred in law by failing to consider and apply the Law on the Form of the Statement of Claim enshrined in Section 24 of the Small Claims Act No. 2 and Rule 32 of the Small Claims Rules, 2019 to the Statement of Claim that was filed by the Appellant.iv.The leaned magistrate erred in law in failing to consider the evidence, issues raised, relevant authorities, statutory provisions and submissions by the Appellant thus arriving at a wrong conclusion.v.The learned magistrate erred in law by disregarding the entirety of the evidence of the Appellant thereby arriving at an erroneous finding in her judgment and decree.vi.That the learned magistrate totally misdirected herself in delivering the judgment and failed to consider and appreciate the evidence on record tendered on behalf of the Appellant. 5.The Appellant sought to have the judgment and decree dated 28th November 2023 set aside and substituted with an order allowing the Statement of Claim, have the appeal allowed and to be awarded the costs of the appeal of the trial court. 6.The appeal was canvased by way of written submissions. 7.The Appellant’s appeal is premised on the issue whether the particulars of negligence were pleaded or not in the Statement of Claim. The Appellant submits that the Paragraph 4 of the Statement of Claim pleaded several particulars of negligence to wit careless driving, failing to keep a safe distance, driving at excessive speed and hitting motor vehicle KBP 123X. The Appellant has relied on several authorities amongst which is the case of Kenyatta National Hospital vs Dorcas Odongo & Another [2021] eKLR Ong’udi J held that particulars of negligence were not mandatory, so long as the allegation was made in the pleadings. 8.The Respondent submits that the trial court did not err itself. That failure to plead particulars of negligence rendered a claim founded on negligence fatally defective. The Respondent relies on the case of Ogwari v Hersi (Civil Appeal 223 of 2022), [2023] KEHC 2011 (KLR) where the court held that the court has no jurisdiction to proceed on a case founded on negligence where no particulars thereof have been pleaded. Negligence must first be pleaded before being proved. 9.I have considered the grounds of appeal and submissions by both counsels and I am of the view that the issue for determination is: Whether the Appellant sufficiently pleaded and proved negligence. 10.This being a first appeal, the role of this court is to re-evaluate and subject the evidence to afresh analysis to reach an independent conclusion as to whether or not to uphold the decision of the trial court. The court also takes note of the fact that it did not have the benefit of seeing or hearing the witnesses testify and therefore has to make an allowance for the same. This principle was set out in Selle and another v Associated Motor Boat Company Ltd and others [1968] 1 EA 123“…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. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence ...” i. Whether the Appellant pleaded particulars of negligence 11.While this court is not oblivious to the position taken by the trial court, it is not oblivious to the overriding objective set out in Section 1A and 1B of the Civil Procedure Act and Article 159 (2)(d) of the Constitution which commands courts to administer justice without due regard to procedural technicalities. The omission of the itemization of the particulars of negligence does not omit the fact that negligence is pleaded by the Appellant albeit without the express heading “particulars of negligence. 12.In the instant appeal the Appellant filed a statement of claim. In the statement the Appellant set out the nature of the negligence. It is clear to this court that the pleading in the case was construed by the form of claim set out in section 24 of the Small Claims Court Act. The said section provides as:“Form of statement of claim Every statement of claim shall contain the following particulars—(a)the name and address of each claimant and, in the case of a representative claim, the name and address of each person represented;(b)the name and address of each respondent;(c)the nature of the claim;(d)the sum of money claimed by each claimant or person represented;(e)the relief or orders sought; and(f)other particulars of the claim as are reasonably sufficient to inform the respondent of the ground for the claim and the manner in which the amount claimed by each claimant or person represented has been calculated.” 13.In the case of Dare versus Pulham (1982) 148, C.L.R. 658 the court which described the functions of pleadings as follows;“Pleadings and particulars have a number of functions; they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet, they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial and they give a defendant an understanding of a plaintiff’s claim in aid of the defendant’s right to make a payment into court …” 14.In the case of East Produce Kenya Limited v Christopher Astiado Osiro in Civil Appeal No. 43/01 the court held as follows:“It is trite law that the onus of proof is on he who alleges and in matters where negligence is alleged the position was well laid in the case of Kiema Mutuku –v- Kenya Cargo Hauling Services Ltd 1991 where it was held that “there is as yet no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence.” 15.In the case of Dharmagma Patel & another v T A (a minor suing through the mother and next friend H H) [2014] eKLR, the court had this to say:“I also take note of the fact that in our legal system, there is no liability without fault. In this regard see Kiema Mutuku v. Kenya Cargo Hauling Services Ltd (1991) 2 KAR 258 where the Court of Appeal held: - “There is, as yet, no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence.” The fault has to be pleaded and proved by evidence at the hearing.” 16.This court makes reference to the principles in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR where the Supreme Court held that procedural rules are handmaidens of justice and should not be used to defeat substantive rights. 17.I have carefully considered the pleadings, the evidence on record, and the respective submissions, authorities relied upon by both parties and injuries sustained. The guiding principles on appellate interference with an award of damages have been duly taken into account. 18.The subordinate court in its judgement in this instant appeal held that the total claim amounted to Kshs. 268,390 which the court would have awarded. This action being for negligence, like in all civil litigation, the burden is always on the Claimant to prove that the accident was caused by the negligence of the respondents. The trial court further noted that the claimant did not plead any particulars of negligence as the respondent. 19.However, it is notable that the Appellant, at paragraph 4 of the Statement of Claim, states that:The Claimant blames the Respondent’s authorized driver, agent, servant and /or employee whom the Respondent is vicariously liable for careless driving, failing to keep a safe distance, driving at excessive speed and hitting motor vehicle KBP 123x.” From the foregoing, I am persuaded that the Appellant plead particulars of negligence.” 20.Consequently, I hereby allow the appeal and set aside the judgement and decree in Ruiru Small Claims Court Claim No. SCC/E045 of 2023) and allow the Statement of Claim dated 28th November 2023 with costs to the Appellant DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 4TH DAY OF JUNE, 2026.HON. T. W. OUYA, OGWJUDGEIn the presence of:Wambira for AppellantAol for RespondentNyabuto – Court Assistant