https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8270

Wathaa v Malala (Civil Appeal E411 of 2022) [2026] KEHC 8270 (KLR) (9 June 2026) (Judgment) Neutral citation: [2026] KEHC 8270 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Appeal E411 of 2022 JM Nang'ea, J June 9, 2026 Between Theresia Njoki Wathaa Appellant and Kevin Malala Respondent (Being an appeal from the decree of the Small Claims Court at Nairobi, Milimani (Hon. V. M. Mochache - RM/Adjudicator) arising from Judgement delivered on 28/4/ 2023 in SCCC No. E048 OF 2023) Judgment The Pleadings Before The Lower Court 1.The Appellant herein is challenging the learned Magistrate’s/Adjudicator’s Judgement in which the parties were found equally liable for the claim and granted the Appellant Kshs. 55,550/= in special damages. The Appellant was also awarded the costs of the suit and interest. 2.The summary of the case before the trial court is that the Appellant sued the Respondent for special damages of Kshs. 55, 550/=, the costs of the suit, interest following damage occasioned to her motor vehicle registration number KCS 715 E as a result of alleged negligent driving of the Respondent’s motor vehicle registration number KAQ 223 M. The damage necessitated replacement of the left headlight of the vehicle at a cost of Kshs. 55,000. Search for ownership of the vehicle cost a further sum of Kshs. 550/=. 3.The Respondent filed a response to the claim denying all the material particulars thereof and urged the court to dismiss it. The Evidence 4.The Appellant gave oral evidence reiterating the averments in the Statement of Claim. She testified that she had stopped her vehicle near a road junction on Kangundo road, Nairobi. When she drove on after clearance by a police officer controlling traffic, the Respondent’s vehicle appeared on her left in an attempt to overtake. In the process the vehicles collided and the Appellant’s left hand headlight was damaged. According to the Appellant there were road construction works underway on both sides of the lane she was driving on. It was, however, possible for the Respondent’s vehicle to overtake her vehicle since there was enough space, states the Appellant. 5.The Appellant further told the court that a firm known as Spray Masters repaired or replaced her damaged headlight. Documents in support of the claim were tendered and admitted in evidence without calling their makers after the Respondent’s Advocate intimated that she had no objection. 6.The Respondent also offered through her driver (Joash Juma Otuge). He testified that he slowed down to avoid hitting a pot hole when the Appellant’s vehicle hit his on the right side of the boot, damaging it. The witness therefore faulted the Appellant for careless driving. 7.In his Judgement, the learned trial magistrate determined that the parties were equally to blame for the accident and resultant loss, faulting them for failing to call a police officer who was present at the scene and directing traffic, to provide independent evidence on causation of the accident. The trial court rightly observed that although the police abstract report was exhibited, it is only proof of occurrence and not causation of the accident. Having so found on liability, the court granted the special damages claim to the Appellant. Grounds of Appeal and Reliefs Sought 8.The Appellant’s four Grounds of Appeal as stated in her Memorandum of Appeal dated 17/ 5/2023 may be condensed into two broad grounds as hereunder:a.That the learned trial magistrate erred in law by failing to find that the Respondent was barred by the principle of estoppel from contending that the police abstract report of the accident was not tendered by a police officer, having not objected to its production during hearing of the claim.b.That the trial court misdirected itself by failing to apply the standard of proof on a balance of probability as required in civil cases and therefore liability against the weight of evidence. 9.The Appellant therefore prays as follows;a.That the Appeal be allowed.b.That the lower court’s Judgment on liability be set aside and substituted with a finding that the Respondent was wholly liable.c.That the costs of the Appeal be borne by the Respondent. Analysis and Determination 10.The parties filed written submissions vide the court’s e-filing platform which I have perused against the record of this Appeal. It is trite law that in civil appeals generally an appellate court can only interfere with the findings and /or award of the trial court if the court misdirects itself on matters of fact and /or law by failing to take relevant factors into account or by considering irrelevant factors and thus arrive at a plainly wrong decision (see the case of Ocean Freight Shipping Co. Ltd vs Oakdale Commodities Ltd ( 1997) eKLR Civil Appeal No. 198 of 1995. The appellate court also has the duty of analysing and re-assessing the evidence on record and reach an independent decision as observed in the case of Selle vs Associated Motor Boat Co. ( 1968) EA 123. 11.The legal situation is a little different in relation to Appeals emanating from the Small Claims Court such as the instant Appeal. Pursuant to section 38(1) of the Small Claims Court Act, this court’s jurisdiction is limited to arising issues of law only. 12.In the English House of Lords decision in Re H ( minors) sexual abuse; standard of proof ( 1996) AC 563 and 505 for the Home Department vs Rehman (2003) 1 AC 153 it was reiterated that the standard of proof in civil cases is the preponderance of probability or the balance of probability as it is commonly known, and this means that;“……. the court must be satisfied that the event in question is more likely than not to have occurred. The balance of probability standard is a flexible standard. This means that when assessing this probability, the court will assume that some things are inherently more likely than others…..’’. 13.The Appellant insists that she discharged the burden of proof as she is obligated under section 107 (1) of the Evidence Act which provides that a claimant must prove facts proving the Respondents’ liability while the Respondent thinks otherwise. Determination 14.On the evidence in relation to the issue of liability, it is the word of the one party against that of the other. Neither party called an independent eye witness. It is also noted that the Appellant concedes that the Respondent safely sought to overtake her vehicle. The officer who investigated the accident did not testify. 15.The Appellant’s contention based on the doctrine of estoppel does not arise as the police abstract report of the accident was admitted by consent of the parties. In any event and as correctly observed by the trial court, such document only proves occurrence of and not culpability for a road traffic accident. 16.The lower court therefore rightly apportioned liability equally between the parties. This Appeal is accordingly dismissed with costs to the Respondent. 17.Judgement accordingly. JUDGEMENT DATED, SIGNED AND DELIVERED VIRTUALLY THIS 9TH DAY OF JUNE, 2026.J. M NANG’EA, JUDGE.In the presence of:The Appellant’s Advocate, Mr Kinyanjui.The Respondents’ Advocate, Ms Wekesa for Ms Kariuki.The Court Assistant, Jeniffer.