https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6615

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MURANG’A** **CIVIL APPEAL NO. E122 OF 2024** ## SELINA WANGUI WAWERU .................................................1ST APPELLANT ## JAMES KIMANI NJUGUNA ..................................................2ND APPELLANT **VERSUS** **STEPHEN MWENDA GICHOHI …….…………………..… RESPONDENT** **JUDGMENT** 1. This is an appeal from the judgment and decree of the Hon. Adjudicator D.C. Soy (CM) delivered on 15.10.2024 in Murang’a Small Claims Court Case Number E145 of 2024. The respondent filed for a material claim of Ksh. 585,244/=. The appellant filed a response and a third party notice. The court found the appellant and third party jointly liable for the accident. 1. The appellant filed a memorandum of appeal and set forth the following grounds: 2. That the learned magistrate erred in law and fact by entering judgment against the appellants without duly considering the weight and consistency of the evidence presented by the Appellants. 3. That the judgment unduly favoured the Respondent’s assertions, despite inconsistencies and lack of crucial testimonies or supporting evidence, notably from the respondent’s driver. 4. That the learned magistrate erred in law and fact by considering extraneous matters that lacked evidentiary backing. 5. That the learned magistrate erred in law and fact by failing to give due weight to the appellants’ evidence, submissions and supporting documents, and being influenced by the police abstract. 6. That the learned magistrate erred in law and fact by basing her decision on flawed legal reasoning in attributing liability solely to the appellants. 7. That the learned magistrate erred by failing to note the third party had given evidence on how the accident occurred and making an erroneous finding no explanation had been given. 8. The grounds are prolix, repetitive and anathema to good pleadings. This is contrary to Order 42 Rule 1 of the Civil Procedure Rules which provides as follows: 9. **Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading.** **(2) The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.** 1. The Court of Appeal [Nambuye, Karanja & M’Inoti, JJ.A.] had this to say about compliance with Rule 86 (now Rule 88) of the Court of Appeal Rules (which is *pari materia* with Order 42 Rule 1 of the Civil Procedure Rules) in the case of [**Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] KECA 224 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2020/224/eng%402020-11-06)**.** We are yet again confronted with an appeal founded on a memorandum of appeal that is drawn in total disregard of rule 86 of the Court of Appeal Rules. That rule demands that a memorandum of appeal must set forth concisely, without argument or narrative, the grounds upon which a judgment is impugned. What we have before us are some 18 grounds of appeal that lack focus and are repetitively tedious. It is certainly not edifying for counsel to present two dozen grounds of appeal, and end up arguing only two or three issues, on the myth that he has condensed the grounds of appeal. This Court has repeatedly stated that counsel must take time to draw the memoranda of appeal in strict compliance with the rules of the Court. (See Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v. IEBC & 2 Others [2018] eKLR. In the latter case, this Court lamented: We must reiterate that counsel must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric…A surfeit of prolixious grounds of appeal do not in anyway enhance the chances of success of an appeal. If they achieve anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs. The 18 grounds of appeal presented by the appellant, Robinson Kiplagat Tuwei against the judgment of the Environment and Land Court at Eldoret (Odeny, J.) dated 19th September 2018 raise only two issues… 1. The court abhors repetitiveness of grounds of appeal which tend to cloud the key issues in dispute for determination. In the case of [**Kenya Ports Authority v Threeways Shipping Services (K) Limited** [2019] KECA 472 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/472/eng%402019-07-17), the court of appeal [Nambuye, M. Warsame & Otieno-Odek JJA] observed that: Our first observation is that the memorandum of appeal in this matter sets out repetitive grounds of appeal. The singular issue in this appeal is whether Section 62 of the**Kenya Ports Authority Act**ousts the jurisdiction of the High Court. We abhor repetitiveness of grounds of appeal which tend to cloud the key issue in dispute for determination by the Court. In ***William Koross******V. Hezekiah Kiptoo Kimue & 4 others, Civil Appeal No. 223 of 2013***, this Court stated: **The memorandum of appeal contains some thirty-two grounds of appeal, too many by any measure and serving only to repeat and obscure. We have said it before and will repeat that memoranda of appeal need to be more carefully and efficiently crafted by counsel. In this regard, precise, concise and brief is wiser and better.** 1. The appeal to the High Court from the Small Claims Court is circumscribed in section 38(1) of the Small Claims Court Act as follows: *38. (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.* 1. Starting on what a point of law is not, I am guided by section 32 of the Small Claims Court Act. It provides as doth: - 32. Exclusion of strict Rules of evidence (1) The Court shall not be bound wholly by the Rules of evidence. (2) Without prejudice to the generality of subsection (1), the Court may admit as evidence in any proceedings before it, any oral or written testimony, record or other material that the Court considers credible or trustworthy even though the testimony, record or other material is not admissible as evidence in any other Court under the law of evidence. (3) Evidence tendered to the Court by or on behalf of a party to any proceedings may not be given on oath but that Court may, at any stage of the proceedings, require that such evidence or any part thereof be given on oath whether orally or in writing. (4) The Court may, on its own initiative, seek and receive such other evidence and make such other investigations and inquiries as it may require. (5) All evidence and information received and ascertained by the Court under subsection (3) shall be disclosed to every party. (6) For the purposes of subsection (2), an Adjudicator is empowered to administer an oath. (7) An Adjudicator may require any written evidence given in the proceedings before the Court to be verified by statutory declaration. 1. This means that though the Evidence Act, is a law, noncompliance with that Act is not a point of law. Notwithstanding that, the Evidence Act is not excluded fully. There are certain presumptions that must be made. The status of Sections 107 to 112 of the Evidence Act is different from other procedural sections. 2. Ordinarily, duty of the first appellate court is to re-evaluate and assess the evidence and make its own conclusions. The appellate court keeps in mind that, a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. This was addressed in the cause célèbre, **Selle & Another vs. Associated Motor Board Company Ltd. [1968] EA 123,** where the Court stated as follows: The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal form a trial by the High Court is by way of a retrial and the principles upon the Court of Appeal acts are that the 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 the 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 or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally. 1. However, appeals from the Small Claims Court are different. This is the first and last appeal. It is an appeal on matters of law. This then takes the same turn as an appeal to the court of appeal, where the court gives deference to findings of fact to the court below. Only when the findings of fact are based on no evidence will that be seen as a point of law. 2. An appeal of this nature is on matters of law. It can be pure matters of law or mixed matters of law, but matters of law it is. An appeal on matters of law is akin to a second appeal to the Court of Appeal. The duty of a second appellate court was set out in the case of **Otieno, Ragot & Company Advocates vs National Bank of Kenya Limited [2020] eKLR**: - **This is a second appeal. I am alive to my duty as a second appellate court to determine matters of law only unless it is shown that the courts below-considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. (See: Stanley N. Muriithi & Another versus Bernard Munene Ithiga (2016) eKLR).** 1. Then what constitutes a matter of law? In **Twaher Abdulkarim Mohamed v Independent Electoral and Boundaries Commission (IEBC) & 2 others, (2014) eKLR**, the court stated as follows regarding a matter of law while addressing the aspects of the Elections Act: 4. Although the phrase ‘a matter of law’ has not been defined by the Elections Act, it has been held in Timamy Issa Abdalla Vs Swaleh Salim Swaleh Imu & 3 Others, Malindi Civil Appeal No. 39 of 2013 (Court of Appeal), (Okwengu, Makhandia & Sichale, JJA) of 13.01.2014 that a decision is erroneous in law if it is one to which no court could reasonably come to, citing Bracegirdle vs Oxney (1947) 1 All ER 126. See also Khatib Abdalla Mwashetani Vs Gedion Mwangangi Wambua & 3 Others, Malindi Civil Appeal No. 39 of 2013 (Court of Appeal), (Okwengu, M'inoti & Sichale, JJA) of 23.01.2014 following AG vs David Marakaru (1960) EA 484. 1. To this court, even where the matter involves application of judicial discretion, such discretion, though unfettered, must be exercised in accordance with the law. This Court is therefore persuaded that the exercise of judicial discretion is a matter of law. In Peter Gichuki King'ara Vs Iebc & 2 Others, Nyeri Civil Appeal No. 31 of 2013 (Court of Appeal) (Visram, Koome & Odek, JJA) of 13.02.2014, the Court of Appeal held as follows: - It was held that it is trite law that the exercise of judicial discretion is a point of law and that the trial court in denying a prayer of scrutiny is exercising judicial discretion. The Court concluded that it would not be feasible for the Court of Appeal to order for a recount and scrutiny as this would involve matters of fact that were within the jurisdiction of the trial court. The court further held that the 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 the caveat that the appeal court did not see the witness demeanour – is an issue of law. 1. A matter of law is similar to a preliminary point of law but has a broader meaning. Justice Prof. J.B. Ojwang J (as he then was) succinctly addressed the issue of preliminary objection in the case of **Oraro vs Mbaja** [2005] eKLR: I think the principle is abundantly clear. A preliminary objection as correctly understood is now well settled. It is identified as, and declared to be the point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. I am in agreement that where a court needs to investigate facts, a matter cannot be raised as a preliminary point. 1. Each of the grounds raised is a question of fact. Liability is a question of fact. It cannot be said that there is a basis in law for holding one party liable and not the other. Proof of negligence is a question of fact. The tort of negligence is a question of law. However, whether one party and not the other is liable, it is a question of law for which this court cannot be involved. The question of burden of proof is a question of evidence as well enunciated in ordinary cases in sections 107-109 of the Evidence Act as follows: 107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) 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. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 109. The burden of proof as to any particular fact 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. 1. The court must proceed on the basis that the court got the facts right. There is nothing to determine that is a matter of law that has been raised. The appellants sought refuge in the case of **Evans Nyakwana –vs- Cleophas Bwana Ongaro [2015] eKLR, where** it was held that: **As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.** 1. It is self-evident that the case of **Evans Nyakwana –vs- Cleophas Bwana** (supra) was dealing with a burden of proving certain facts. It is irrelevant for purposes of the small claims appeal. The court is bound by Section 32 of the Small Claims Court Act as regards to evidence and finding of fact. 2. This leaves the issue of costs, which is governed by Section 27 of the Civil Procedure Act, which provides as follows: **(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.** **(2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.** 1. Costs are generally discretionary. However, the discretion is not arbitrary. The Court of Appeal in the case of [**Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/keca/2018/158/eng%402018-10-18) had this to say: It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown. 1. The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of [**Rai & 3 others v Rai & 4 others** [2014] KESC 31 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kesc/2014/31/eng%402014-03-04), as follows: **18.It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation** **22. Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant.** 1. Since costs follow the event, the respondent is entitled to costs of the appeal. A sum of Ksh. 65,000/= will be right and just. Determination 1. In conclusion, I make the following orders: 2. The appeal is dismissed with costs of Ksh. 65,000/= to the respondent. 3. 30 days stay of execution. 4. The file is closed. **DELIVERED, DATED** and **SIGNED** at **NYERI** on this **11th** day of **May, 2026**. Judgment delivered through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **In the presence of:-** Mr. Wandaka for the Appellants No appearance for the Respondent Court Assistant – Martin