Busia Sugar Industry Limited v Thando Africa Limited

5. The appellant argues that the matter was to proceed under section 30 of the Small Claims Court Act, based only on documents, yet the trial court held that the appellant failed to call its driver to give an account of the events of the day, which suggested that the appellant was condemned unheard. It is further submitted that the trial court did not interrogate the issues before it. It is submitted that the road in question was public, and any other road user could have caused damage. It is also submitted that the respondent did not adduce evidence that he had complied with relevant statutes on road construction. 6. I have perused the trial record, and it is evident that the matter proceeded under section 30 of the Small Claims Court Act, going by the proceedings of 2nd September 2024. No evidence was taken viva voce, and the judgement was determined based on the material filed. 7. The appellant complains that the trial court departed from section 30 to the extent that the court, in the judgement, stated that the appellant “did not call the driver of the vehicle to counteract the narration as to how the events happened.” 8. With respect, the appellant is taking this a little too literally. The record speaks for itself. There was no oral or viva voce hearing. No evidence was taken orally. “Narration”, as used in the judgement, in my understanding, only referred to the witness statements of the partis, and the trial court was just saying that the appellant ought to have relied on a witness statement by the driver of the accident vehicle, as he would have been better placed, compared with any other employee of the appellant, to give a proper account of the incident, as he was eyewitness to it. I see no departure from section 30 of the Small Claims Court Act in the circumstances. 9. On the evidence or defence of the appellant being disregarded, I note that the trial court referred to the witness statement of the witness for the appellant, Dickens Wallace Makokha. It is from this witness statement that it was noted that Dickens Wallace Makokha was not the driver of the accident vehicle, and the observation that the appellant would have better off with a witness statement by the driver. It is also noted, in the judgment, that that witness confirmed that the respondent had complained to the appellant about the judgment. I have noted that judgment correctly captures the contents of the witness statement of Dickens Wallace Makokha. That would be testimony that it was considered, not disregarded, and that the trial believed the version by the respondent. It cannot be said that the appellant was condemned unheard, for its witness statement was considered by the trial court. 10. On the road in question being a public road, the witness statement by the appellant did not address that issue, hence it cannot arise on appeal. As to warnings and road signs, the appellant has not cited any law which would have required the respondent to put up such warnings or erect such road signs. 11. On the matter of it not being proved that the accident vehicle was out on that culvert, it should be pointed out that this is a civil matter, not a criminal one. The standard of proof is not that beyond reasonable doubt, but that on a balance of probability. The material presented by the parties was adequate for the trial court to evaluate the matter on the basis of balance of probability. 12. Overall, I do not find merit in the appeal herein. I accordingly dismiss the same, with costs. Orders accordingly. DELIVERED, DATED AND SIGNED IN OPEN COURT, AT BUSIA, ON THIS 31ST DAY OF JULY 2025. WM MUSYOKA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11670/eng@2025-07-31 2

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Mr. Arthur Etyang, Court Assistant. Advocates Mr. Ipapu, instructed by Ipapu P. Jackah & Company, Advocates for the appellant. Mr. Mbeka, instructed by Mbeka & Associates, Advocates for the respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11670/eng@2025-07-31 3

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