Pa (minor Suing Through Mother and Next Friend Emc) v Daniel Kyalo Kioko

3. Parties agreed by consent to produce all documents filed in the Claim. The matter proceeded for hearing with the Appellant calling one witness, who is the mother of the minor. She sought to adopt her witness statement dated 2/8/2023 as her evidence in chief plus her documents on the list of documents dated 2/8/2023 as Claimant’s Exhibit 1 to 8. She testified that the minor had completely recovered. She blamed the tuk tuk registration No. KTWB 436D for the accident and prayed for compensation and costs. 4. On cross examination, she stated that the accident was on 17/7/2023. She still blamed the tuktuk driver whom she was told was told got to the road without giving way. She was not present during the accident. She did not have an eye witness and neither did she know if the tuktuk was charged. The Claimant’s case was closed. 5. The Respondent’s case was closed without calling evidence. 6. Upon consideration of the pleadings, evidence and submissions which were only filed by the Appellant, the trial magistrate found that the Claimant had not been able to convince the court that the Respondent’s driver was negligent and thus caused the accident and there is nothing for the Respondent to rebut. The trial Magistrate thus dismissed the Claim. 7. The trial Magistrate went on to state that it was also important to note that the Claimant had not produced any document to prove the relationship between her and the minor. Even if negligence had been proved, the Claim would still have failed for that reason. 8. The trial Magistrate proceeded to assess the damages she would have awarded had the Claim been successful. 9. Being aggrieved by the said judgment the Appellant lodged the appeal herein. 10. The Appellant in the undated Amended Memorandum of Appeal has raised 5 grounds of appeal which basically challenge the entire judgment of the trial court. The grounds are as follows: a. That the learned magistrate erred in law xxxxxx in holding that the appellant was liable, while the elements of the case point, and prove that the claim is of employer employee relationship and therefore it was an employment claim and the court lacked instance jurisdiction to entertain the claim. b. That the learned magistrate erred in law xxxxxx by admitting documentary evidence that were altered by peter Wanjohi Njuguna purportedly representing the respondent without any proof of CR12 certificate on record of the court. c. That the learned magistrate erred in law xxxx by relying on skewed documents that were drafted by the purported director of the respondent without the knowledge of the appellant including a forged signature of the appellant thereby failing to carry out an independent assessment of the evidence hence arriving at an erroneous conclusion. d. That the learned magistrate erred in law by failing txxxxxxo hold that the appointment letter produced before court by the respondent herein was void ab initio since the signature appended on it was not by the Appellant. e. That the learned magistrate erred in law by xxxxfailing to hold that the employment contract was oral in nature since the appointment letter was strange to the appellant, and the signature on it was forged by the respondent, a ploy for seeking to benefit from unlawful acts and denying the appellant his rightful salary and commission. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14306/eng@2025-06-05 2

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11. The duty of this court on appeals from the Small Claims Court is clearly set out in the Small Claims Act. An appeal from the Small Claims Court is on issues of law only. This is pursuant to Section 38 of the Small Claims Court Act. It provides that: “ 38. 12. (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. (2) An appeal from any decision or order referred to in Subsection (1) shall be final.” What constitutes, points of law, has been settled. In the case of 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 stated 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 demeanor – is an issue of law.” 13. I have perused the Record of Appeal, considered and weighed the evidence and submissions on the appeal while taking into account that this court has a duty to re-evaluate, re-assess and re-analyze the record and make its own conclusions. The grounds of appeal can be collapsed and considered as one issue on whether the Claimant proved her case on a balance of probability. Liability 14. The record shows that the Claimant testified in court and produced as CExts 1-8 documents on her list of documents dated 2/8/2023. Apart from the Police abstract, there were the treatment notes, P3 Form, P3 Form receipt, medical report and demand letter all pointing to the alleged accident and none of which was disputed by the Respondent. The minor was merely a lawful passenger on board the Respondent’s tuktuk registration No. KTWB 463D. She had no control of the same and she anticipated that the Respondent’s driver would drive her carefully and safely to her destination. The Claimant once she ensured the minor had boarded the tuk tuk, she had no control of or anything to do with how the same would be driven to the minor’s destination. I therefore find the particulars of negligence alleged against the Claimant and the minor to be misplaced. 15. In the circumstances of this case, all the minor had to show is that she was a passenger in the Respondent’s tuktuk when it was involved in an accident as a result of which she was injured. Her injuries were confirmed by the treatment notes, P3 Form and its receipt as well as the medical report. It is therefore my considered view that the trial court erred in relying only on the Police Abstract to find that the Respondent did not prove negligence and more so by relying on the case of Peter Kanithi Kimunya v And Guyo Haro (2014) eKLR where it was held that a police abstract is not proof of occurrence of an accident but of the fact that following an accident, the occurrence thereof was reported at a particular police station. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14306/eng@2025-06-05 3

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16. The Respondent filed a Response to the Statement of Claim but failed to file a list of witnesses or witness statements or to call any witness to support the response through evidence. The Respondent having failed to call any witness, the contents of the Response to the Statement of Claim remain mere allegations which have not been proved. The Claimant’s testimony and the documents produced by the Claimant also remain uncontroverted. This principle has been reiterated in many cases. One such case is North End Trading Company Limited (Carrying on the Business Under the Registered Name of) Kenya Refuse Handlers Limited Vs. City Council of Nairobi [2019] eKLR in which J.A. Makau J held as follows: “ In Edward Muriga Through Stanley Muriga vs. Nathaniel D. Schulter Civil Appeal No.23 of 1997, it was held that where a defendant does not adduce evidence the plaintiff’s evidence is to be believed, as allegations by the defence is not evidence. 17. In the case of Motex Knitwear Limited vs. Gopitex Knitwear Mills Limited Nairobi (Milimani) HCCC No.834 of 2002, Lesiit, J. citing the case of Autar Singh Bahra and Another vs. Raju Govindji, HCCC No. 548 of 1998 appreciated that:‘Although the Defendant has denied liability in an amended Defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the evidence rendered by the 1st plaintiff’s case stand unchallenged but also that the claims made by the Defendant in his Defence and Counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail.’" 18. There is also the Court of Appeal in the case Edward Mariga through Stanley Mobisa Mariga Vs. Nathaniel David Shulter & Another [1979] eKLR where it was stated as follows: “ The respondents filed a defence in which they denied the appellant's claim and averred that the accident was caused by the appellant's own negligence in that he suddenly ran across the road and in the process was hit by the motor vehicle. The respondents did not give evidence and so the only explanation as to how the accident happened was the version put forward by the appellant and his brother.” 19. Similar holding was reiterated by C.B. Madan JA in the Court of Appeal case of CMC Aviation Ltd Vs. Crusair Ltd (No.1) (1987) KLR 103 where he made the following remarks: “ The pleadings in a suit are not normally evidence. They may become evidence if they are expressly or impliedly admitted as then the admission itself is evidence. Evidence is usually given on oath. Averments are not made on oath. Averments depend upon evidence for proof of their contents.” 20. On the foregoing decisions, it is my view, that a party to a case having filed his/her pleadings should call evidence where the matter is considered to proceed by way of evidence. It is trite law that where a party fails to call evidence in support of its case, the party’s pleadings are not to be taken as evidence, but the same remain mere statements of fact which are of no probative value since the same remain unsubstantiated pleading which have not been subjected to the required test of cross-examination. A defence in which no evidence is adduced to support it cannot be used to challenge the Claimant’s case. The failure to call evidence means that the evidence adduced by the Claimant remains uncontroverted and therefore unchallenged. In such a situation the Claimant is taken to have proved his/her case on balance of probability in absence of the Respondent/Defendant’s evidence. In the instant case the Claimant gave evidence which was not challenged and produced documents in support of her claim. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14306/eng@2025-06-05 4

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I find the Claimant’s evidence to be credible and I am satisfied the Claimant pleaded and proved her claim on a balance of probability. 21. See Susan Kanini Mwangangi & Another versus Patrick Mbithi Kavita [2019] eKLR the Court, with reference to the East African Court of Appeal’s decision in Embu Public Road Services Ltd versus Riimi [1968] EA 22 stated thus: “ The doctrine of res ipsa loquitor is one which a plaintiff, by proving that an accident occurred in circumstances in which an accident should not have occurred, thereby discharges, in the absence of any explanation by the defendant, the original burden of showing negligence on the part of the person who caused the accident. The plaintiff, in those circumstances does not have to show any specific negligence but merely shows that an accident of that nature should not have occurred in those circumstances, which leads to the inference, the only inference, that the only reason for the accident must therefore be the negligence of the defendant…The defendant can avoid liability if he can show either that there was no negligence on his part which contributed to the accident; or that there was a probable cause of the accident which does not connote negligence on his part; or that the accident was due to the circumstances not within his control.” 22. This court notes that the Respondent also set out particulars of negligence of the driver of motor vehicle registration number KCE 341Z, however the Respondent failed to take out Third Party proceedings against the owner of the said motor vehicle. 23. Further, in her judgement, the trail court went on to state that: “ it was also important to note that the Claimant had not produced any document to prove the relationship between her and the minor. Even if negligence had been proved, the Claim would still have failed for that reason”. 24. In regard to the above statement, I have read the Respondent’s Response to the Statement of Claim as well as the proceedings on cross examination of the Claimant herein. The Respondent did not at all dispute the relationship of the Claimant and the minor herein. In fact, the Respondent’s counsel consented to the Claimant producing all the documents filed in the case. If the Respondent had an issue with the mother-child relationship herein, the same would have been raised. In any event, there was no contrary evidence to demonstrate that the Claimant was not the mother of the minor. I find that the trial magistrate overstepped into the parties’ arena and went on to determine an issue that was neither pleaded nor contested thus prejudicing the Claimant by dismissing the Claim. 25. To this end, it suffices to cite and reference the decision of the Court of Appeal in the case of Dakianga Distributors (K) Ltd v Kenya Seed Company Limited [2015] eKLR, where the court stated and held thus;“ As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings for the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14306/eng@2025-06-05 5

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the parties. To do so would be to enter upon the realm of speculation. Moreover, in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice. In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called “Any Other Business” in the sense that points other than those specific may be raised without notice.” 26. Having found that the Claimant pleaded and proved her claim on a balance of probability, I will proceed to consider the issue of quantum. Quantum 27. The trial Magistrate upon dismissal of the Claim proceeded to assess the damages she would have awarded had the Claim been successful. The medical report by Dr. Kimuyu shows that the Claimant sustained blunt injuries to head, neck, chest, low back, shoulders, right leg with a cut wound. 28. The Claimant proposed Kshs.400,000/=. The Respondent did not file submissions. The trial Magistrate relied on the cases of Edward Muteva & Another v Edwin Nyamweya (2022) eKLR where the Appellant sustained cut wounds on the scalp, bruises on the back, bruises on the right upper limb and bruises on the left lower limb. He was awarded Kshs.550,000/= which was revised to Kshs.100,000/= on appeal and in Francis Omari Ogaro v JAO (Minor suing through next friend and farther GOD (2021) eKLR, the court awarded Kshs.180,000/= in October 2021 where the Plaintiff sustained a cut wound with bruises on the temporal region, Laceration with inflammation of the frontal part of the head, Right umbilical region tenderness; left iliac region cut wound with bruises, Bruises on the posterior aspect of the elbow joint bilaterally, Right lower limb (lateral ankle joint) cut wound with bruises and inflammation. 29. The trial Magistrate opined that an award of Kshs.150,000/= would have been sufficient to compensate the Claimant for the injuries sustained. 30. For an Appellant Court to interfere with an award of damages, it must be shown that the trial court in awarding damages, took into consideration an irrelevant fact or the sum awarded is inordinately low or too high that it must be a wholly erroneous estimate of the damage, or it should be established that the wrong principle of law was applied. 31. In the case of Maraga V Musila (1984) 1 KLR 251, where the Court of Appeal when addressing its mind to this issue expressed itself thus; “ The assessment of damages is more like an exercise of discretion and an appellate court is slow to reverse a lower court on the question of the amount of damages unless it is satisfied that the judge acted on a wrong principle of law or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. The question is not what the appellate court would award but whether the lower judge acted on the wrong principles”. 32. The approach taken by courts in the assessment of damages is that comparable injuries should as far as possible be compensated by comparable awards although the court should bear in mind that no two cases are exactly the same. The court will also consider factors such as the state of the economy and the rate of inflation in its assessment of damages. (See Stanley Maore v Geoffrey Mwenda [2004] eKLR and Ugenya Bus Service v Gachoki [1982] eKLR). https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14306/eng@2025-06-05 6

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33. In the circumstances, having given due consideration to the injuries sustained by the Claimant, it is my considered finding that the authority of Edward Muteva & Another v Edwin Nyamweya (2022) eKLR relied on by trial Magistrate to be more comparable to injuries that were sustained by the Appellant in this appeal. I therefore see no reason to interfere with what the trail Magistrate wound have awarded in general damages. I ward the Appellant Kshs.150,000/= in general damages. Disposition; 34. I allow the appeal to the extent that; a. I set aside the judgement of the SCCC No. E612 OF 2023 delivered on 05/10/2023. b. The Respondent is held 100% liable for the accident. c. The Appellant is awarded Kshs.150,000/= in general damages d. Special damages Kshs.8,900/=. e. The Appellant will have costs of the lower court Claim and of this appeal plus costs and interest at court rates from the date of judgement delivered on 05/10/2023 until payment in full. f. Stay of execution for 30 days is allowed. g. Orders accordingly. File closed. JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 5TH JUNE 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 5TH JUNE 2025 In the presence of: Ms. Omari h/b for Mr. Mulyungi........... for Appellant Absent............ for Respondent Milly grace....... Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14306/eng@2025-06-05 7

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