https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11041

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **CIVIL APPEAL NO. E080 OF 2025** **VINCENT EDWARD ODHIAMBO…………………………. APPELLANT** **-VERSUS-** **FRED ONYANGO OGUTTU………….…………………… RESPONDENT** *(****Being an appeal from the judgment/decree of the Honourable G. Serem Adjudicator) delivered on 7/03/2025 in Kisumu SCCC No. E025 of 2025)*** **JUDGMENT** 1. The appeal before me was provoked by the judgement delivered by Small Claim Court on 7th March 2025. The appellant had filed a statement of claim seeking compensation as a result of an accident said to have occurred on 29/12/2025 along Ahero – Awasi Road. The claim was dismissed. 2. The appellant being aggrieved file this appeal and raised to following grounds: - 3. That the learned trial magistrate erred both by holding that the claimant/appellant had not proved that the accident occurred on 29/12/2024 at Ngere Area along Ahero-Awasi road involving the respondent’s motor vehicle registration no. KBM 094G and that the claimant was among the persons involved in the accident yet the appellant tendered the required evidence that was corroborated which proved that the accident occurred and the claimant is one of the persons that was injured in the accident; hence the decision to dismiss the appellant’s suit on that account alone was legally unjustifiable and ought to be set aside. 4. That the learned trial magistrate erred in fact and in law in failing to consider the appellant’s testimony, evidence and submissions in totality and as a result arrived at un unjustified decision not supported by law and facts. 5. That the trial magistrate erred by failing to award the appellant general and special damages for the injuries the claimant sustained after he was hit by the respondent’s motor vehicle. 6. The appellant asks this court to set aside the trial court’s findings and judgment on liability and instead find the respondent 100% liable. On quantum of damages payable, the appellant agrees with the trial court and asks that the sum assessed be awarded. 7. The appeal proceeded by way of written submissions with both sides complying. In his submissions the appellant generally and extensively repeated his testimony before the trial court. He submitted that with the evidence on record the trial court should have found in his favour on liability. He referred to the testimony by the respondent which was characterized as consisting admissions. 8. The respondent in opposition submitted that the court ought to re-evaluate and reconsider the evidence before the trial court and draw its own conclusions. He referred to the authorities of **SELLE VS ASSOCIATED MOTOR BOAT CO (1968) EA and JABANE VS OLENJA (1986) KLR 661** and **664.** 9. The respondent urged the court not to interfere with the findings of facts unless it is clearly demonstrated that the trial court misapprehended the evidence, applied wrong principles of law or arrived at a plainly erroneous decision. It was his position that on the evidence on record the court came to the correct finding. He urged this court to dismiss the appeal. **ANALYSIS** 1. Having carefully perused the pleadings, the record of appeal, the trial court’s judgment and submissions by both sides the following issues come up for determination: 2. Whether the appeal is competent before this court as provided under Section 38 (1) of Small Claim Court Act. 3. Whether the burden of proof on liability was established to the required standard. 4. On the first issue the appellate jurisdiction of this court on matters from the Small Claims Court is strictly defined by Section 38 of the Small Claims Act. It is limited to matters of law. The appeal before this court is final. 5. As to what amounts to ‘matter of law’ and ‘point of law’ there is no universal definition. The Black’s Law Dictionary provides a working definition as follows: “Matter of facts: a matter involving a judicial inquiry into the truth of alleged facts and Matter of Law: A matter involving a judicial inquiry into the applicable law.” 1. The ever green Lord Denning J. had occasion to discuss the two terms in the case of ***Bracegirdle vs Oxley (2) (1947) 1 ALL E.R 126*** **PARA** at P130 where he stated: - “The question whether a determent by a tribunal is a determination in point of fact or in point of law frequently occurs. On such a question there is one distinction that must always be kept in mind namely, the distinction between primary facts and conclusions from those facts. Primary facts are facts which are observed by testimony. Conclusions from these facts are inferences deducted by the process of reasons from them. The determination of primary facts is always a question of facts. It is essentially a matter from the tribunal who sees the witnesses to assess their credibility and to decide the primary facts which depend on them. The conclusions from those facts are sometimes conclusions of fact and sometimes conclusions of law. In a case under the Road Traffic Act, 1930, Section 11, the question whether a speed is dangerous is a question of degree and a conclusion on a question of degree is a conclusion of fact. The court will only interfere if the conclusion cannot reasonably be drawn from the primary facts and that is the case here. The conclusion drawn by these justices forms the primary facts, was not one that could reasonably be drawn from them” 1. Our Court of Appeal referring to this decision in Bashir Haji Abduhalli versus Adan Mohammed Noor & 3 others (2014) eKLR stated: - ‘That reasoning has been adopted in this jurisdiction. In ***AG versus David Marakaru (1960) EA 484***, for instance, Chief Justice Ronald Sinclair sitting with Rudd J. adverted to the factual foundations of legal questions by stating that an appellate court restricted to determining questions of law may yet quite properly interfere with the conclusion of a lower court if the same is erroneous in point of law. This is the case where that lower court arrives at a conclusion on the primary facts that it could not reasonably come to. Such a conclusion or decision becomes an error in point of law. See also ***PATEL versus UGANDA (1966) EA 311 and SHAH versus AGUTO (1970) EA 263.’*** 1. Further in ***Peter Gichuki King’ara versus IEBC and 2 others*** the Court of Appeal held that a decision challenged on the basis of wrongful exercise of discretion raises a point of law. 2. From the definitions and holdings above, where an appeal lies on the matter of law the appellate court is called upon to steer clear of findings of fact. The court should only interfere with the findings of fact only when they are so perverse so as to defeat the object of justice. 3. In the instant case, the appellant has raised issues with the issue of burden of proof as it deals with liability. That, in my view, is a matter of law. The appeal is competently before the court. 4. On the second issue, I am to determine whether the claimant discharged the burden of proof to the required standard. 5. Section 107, 108 and 109 of the Evidence Act deal elaborately with burden of proof as follows: - ‘(a) 107. Burden of proof (i) whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he assets must prove that those facts exist. (b)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 108. Incidence of Burden. The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side. 109. Proof of particular fact. The burden of proof as to any particular facts lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.’ 17. The provisions above describe two limbs of the burden of proof. These are the legal burden of proof and the evidential burden of proof. The legal burden is on the party asking the court to make orders in its favour. The evidential burden of proof rests initially with the claimant but would shift to the opposing party depending on the weight of evidence adduced by the claimant. 18. This is the standard I am to apply as I determine whether the appellant discharged the burden of proof in this case. 19. The claimant testified. He relied his statement. He stated that he was a pedestrian on the material date. That motor vehicle KBM 094G driven by the respondent hit a motor cycle veered off the road and hit him while on the pedestrian lane. He blamed the respondent for his negligent driving. A police abstract was produced by a police officer to show that an accident occurred on the date in question and on the said road involving the respondent’s motor vehicle and the claimant. 20. I have considered the submissions by the respondent stating that a police abstract does not establish occurrence of an accident. It is also submitted that there was no eye witness to the accident. The case of ***KASAAM HAULIERS LIMITED & ANOTHER VERSUS SHREEJ ENTERPRISES (2025) KEHC 2039 (KLR)*** was cited in aid of a proposition that production of a police abstract only proves that a report was made. 21. I find that case distinguishable because it was stated that the investigating officer did not testify. That there was no eye witness. In the case before me the appellant was present when the accident occurred. He is an eye witness. A police officer testified for the claimant. He told the trial court that an accident occurred involving the claimant as a pedestrian and the respondent’s motor vehicle. 22. I find the case of **Mary Njeri Mwangi versus Peter Macharia and another (2016) eKLR** more relevant to this appeal. In that case the court held: ‘A person who is driving a vehicle is under a duty of care to other road users. The vehicle is a lethal weapon and due care is expected of the driver who is in control thereof.’ 23. Having evaluated the evidence as above the court made a finding that negligence was not established on a balance of probabilities. The reason given for that finding is that there was no evidence that an accident occurred. I find that finding to be against the evidence adduced on both sides. Even the respondent admitted to being involved in an accident at the material time and on the road in question. His complaint was that he did not see the claimant at the scene. The police abstract established the occurrence of the accident. 24. As noted above how the court handled the burden of proof is a matter of law. In this matter it is my finding that there was sufficient evidence to prove the appellants case on a balance of probabilities. For that reason, the appeal on the question of finding on liability succeeds. 25. I note that the respondent did not cross- appeal on the quantum of damages awarded by the trial court. The appellant stated that he was satisfied with the sum awarded as damages. I find no reason to disturb the finding by the learned adjudicator on damages awardable. **DISPOSITION** 26. In the result the following final orders are issued: - (a) the appeal is hereby allowed in its entirety. (b) costs awarded to the appellant. Orders accordingly. **DATED, SIGNED AND DELIVERED IN VIRTUAL COURT IN MAKADARA THIS…3rd ……DAY OF …. JULY…….. 2026.** **HON. ALEX. K. ITHUKU** **JUDGE** Judgment virtually delivered in the presence of Ms. Godia holding brief for Ms. Cheloti for the appellant. Ms. Ochieng for the respondent. **HON. ALEX. K. ITHUKU** **JUDGE**