Michael Kinuthia v Rosemary Njeri Ndungo

the irrefutable evidence that the suit accident was a chain reaction accident involving 4 vehicles. The appellant's vehicle was the second vehicle in the accident and the respondent's vehicle was third. 3. e). The Honourable Adjudicator erred in abdicating judicial authority to the police officer who prepared the police abstract produced by the respondent. f). The Honourable Adjudicator erred in holding that the Appellant did not adduce evidence to rebut the opinion in the police abstract, whereas the Appellant availed evidence in rebuttal. Parties filed written submissions and agreed to have the matter disposed off without highlighting. Appellant's Case 4. The appellant submitted that the Honourable Adjudicator erred in failing to consider the evidence presented by the Appellant. The appellant submitted that the evidence tendered by Appellant included his statement, his driver's statement (Steven Ndengu), a copy of the Occurrence Book report and an agreement with the driver of the motor vehicle registration number KAE 560U. 5. The appellant further submitted that the Court fell into error and deprived the Appellant a fair hearing on the merits. 6. The Honourable Adjudicator erred in failing to make an independent assessment of the totality of the evidence before Court hence the court erred in failing to determine how the suit accident occurred. 7. The appellant went on to add that the Court placed a premium value on the police abstract. Yet the opinion therein was only a part of the evidence tendered. 8. The appellant further asserted that the Respondent's claim form cemented the fact that this was a chain reaction accident. According to the appellant were it not for the initial impact by KAE 560U, the Appellant's vehicle would not have hit the Respondent's vehicle. Neither would the Respondent's vehicle hit the Probox ahead. 9. Further, the appellant argued that the Honourable Adjudicator erred in concluding that the opinion in a police abstract is conclusive on liability for the suit accident, when that opinion was indefensible in the face of the irrefutable evidence that the suit accident was a chain reaction accident involving 4 vehicles and that the appellant's vehicle was the second vehicle in the accident and the respondent's vehicle was third. 10. The appellants cited the case of Kimatu Mbuvi t/a Kimatu Mbuvi & Bros v Augustine Munyao Kioko [2006] eKLR, the Court held: “ ...such opinions are not binding on the court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified. But a court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so." 11. According to the appellant, whereas the police abstract indicated the Appellant's vehicle was to blame, it did not assign reasons for that opinion thus the Adjudicator was bound to consider the totality of the evidence. The evidence did not indicate negligence on the part of the Appellant's driver. 12. The appellant went on to claim that the Adjudicator did not consider why the Respondent's vehicle hit the Probox ahead. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6538/eng@2026-01-29 2

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13. Further, the appellant submitted that the Honourable Adjudicator erred in abdicating judicial authority to the police officer who prepared the police abstract produced by the respondent. He maintained that whereas the police officer who prepared the police abstract could give an opinion, the Honourable Adjudicator vested with judicial authority under Article 159 (1) of the Constitution, had the final say on the matter of liability. The learned adjudicator ought to have subjected the evidence to an independent analysis before making the decision. 14. The appellant further argued that the police abstract was inaccurate/incomplete for failing to indicate all vehicles involved in the suit accident. 15. The appellant urged the court to find that the police officer who filled the abstract did not determine the fault of each of the drivers involved thus he may not have had the advantage of witnessing the accident before assigning responsibility to the appellant. 16. It was further argued for the appellant that the Honourable Adjudicator erred in holding that the Appellant did not adduce evidence to rebut the opinion in the police abstract, whereas the Appellant availed evidence in rebuttal. 17. The appellant contended that the evidence showed that the Appellant's driver was a victim of the accident not the perpetrator. The Appellant's vehicle was hit from the rear and thrust forward. The driver swerved left to avoid a full-on impact against the Respondent's vehicle. Unfortunately, the Respondent's vehicle also rammed into the Probox ahead. 18. The appellant thus urged the court to allow the appeal and set aside the judgment. Respondent's Case 19. The respondent submitted that: (a) the Impugned Judgement is well-reasoned and strongly premised on the evidence and the law. (b) the Appellant has failed to demonstrate any legal or factual basis to warrant inteference with the findings and conclusions of the trial court. 20. The appellant stated that as the Claimant in the trial court, she sought compensation for material damage caused to her Toyota RAV 4 by the Appellant's Nissan Datsun Registration No. KAJ 304P. 21. The Respondent brought the claim on behalf of her insurer, Jubilee Allianz Kenya Limited ("Jubilee Allianz") under the doctrine of subrogation, following Jubilee Allianz's settlement of the repair costs of the RAV 4. 22. The trial court found in favor of the Respondent, finding that the Appellant was fully responsible for the damage to the Respondent's car. Having found that the Respondent had pleaded and proved her special damages, the trial court awarded the Respondent Kshs.124,004.00 plus costs and interest. 23. The respondent submitted that the appellate jurisdiction of the High Court in relation to appeals from the Small Claims Court is circumscribed by Section 38 (1) of the Small Claims Court Act, 2016. 24. In brief, Section 38 provides that an appellant can only challenge a decision of the Small Claims Court on points of law. 25. Further, that this Honourable Court is not permitted to substitute the findings of the trial court with its own unless the findings are so perverse that no reasonable tribunal would have arrived at them See for instance, Crown Beverages Limited v MFI Document Solutions Limited (Civil Appeal No. E833 of 2021) [2023] KEHC 58 (KLR) (Civ) (17 January 2023) (Judgement). https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6538/eng@2026-01-29 3

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26. The Respondent submits that the trial court's judgment refiects a careful analysis of all the evidence presented by both parties. As evidenced at paragraph 14 of the Impugned Judgment, the trial court correctly found that the Appellant had failed to present evidence that would controvert the Respondent's evidence. 27. The trial court considered the testimony of the Appellant, the accident report, and other supporting evidence and that the trial court's finding that the Appellant was at fault was based on a proper assessment of the evidence. 28. According to the respondent the Judgement confirms the Respondent's submission that the trial court not only considered but also analyzed the Appellant's evidence and submissions. 29. The Respondent submits that the Appellant's evidence was contradictory and failed to displace the direct and consistent evidence provided by the Respondent. 30. The Respondent further submits that the decision to join or not to join other alleged tortfeasors was within the prerogative of the Appellant. Since it was the Appellant's car that hit the Respondent's car, the Respondent correctly exercised her legal right to proceed against the Appellant alone. The court therefore was right in determining the matter as against the appellant and the respondent. 31. The Respondent contends that the Appellant had every opportunity to raise a third-party notice or to seek joinder of the alleged other tortfeasors he deemed responsible for the accident under Order 1 Rule 15 of the Civil Procedure Rules, but failed to do so. 32. The Appellant's failure to do so cannot now be used as a ground for challenging the Impugned Judgdment. It is trite law that a defendant who believes that another party bears liability for the same tort is duty-bound to take appropriate third-party proceedings. See for instance Omar Said & Another v George Karongo Kamau [2017] eKLR. The Appellant's failure to take such steps disentitles him from raising this issue at the appellate stage. 33. The Respondent further submits that the principle of joint and several liability applies in cases involving multiple tortfeasors. The Respondent was entitled to proceed against any one or more of the parties responsible for the accident without being compelled to sue all tortfeasors simultaneously. 34. According to the respondent, the trial court correctly analyzed the evidence presented, including the Respondent's testimony and the accident report. 35. The evidence demonstrated that the Appellant's vehicle was solely to blame for the accident that damaged the Respondent's car. Specifically, the Investigating Officer who investigated the circumstances of the accident fully blamed the driver of the Appellant's car 36. Under Section 107 of the Evidence Act (Cap 80), the burden of proof lies on the party asserting a fact. The Respondent discharged this burden by adducing credible evidence establishing that the Appellant was at fault. 37. It was argued by counsel for the respondent that the Appellant failed to present any evidence that would controvert the evidence and finding that his car was reponsible for the damage to the Respondent's car. 38. Once the Respondent established a prima facie against the Appellant, the burden shifted to the Appellant to rebut such evidence. The Appellant failed to provide any plausible explanation or contrary evidence to displace the Respondent's case. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6538/eng@2026-01-29 4

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39. The police abstract was duly produced in evidence and its contents were never challenged by the Appellant. He did not: (a) Provide any contrary evidence to dispute the findings in the abstract. (b) Call any witness to challenge the conclusion therein; or (c) Seek to cross-examine the maker of the abstract or request the attendance of the investigating officer. 40. The respondent posited that a party who wishes to contest the credibility or reliability of such a document must take steps to challenge it, something the Appellant failed to do. 41. While it is accepted that a police abstract is not conclusive proof of liability, courts have consistently held that where the document is unchallenged and uncontested, and where the party against whom it is used fails to rebut it, the court may assign significant probative weight to it. See the decision of the Court of Appeal in Lake Flowers v Cila Francklyn Onyango Ngonga & Another [2008] KECA 54 (KLR) 42. The trial court considered the abstract together with the Respondent's testimony, the Appellant's lack of rebuttal, and the failure to join or call the alleged other drivers. 43. If the Appellant believed that the abstract was inaccurate or incomplete, particularly in an accident involving multiple vehicles, he bore the burden of producing credible evidence or seeking joinder of the other parties under Order 1 Rule 15 of the Civil Procedure Rules. He did neither. 44. The respondent concluded by submitting that the Appellant had failed to demonstrate any misdirection or error in law to warrant interference by this Honourable Court. Accordingly, the appeal should be dismissed with costs to the Respondent. Analysis and Determination 45. The respondent raised a cardinal point in this appeal that in respect of judgments from the small claims court, an appeal to the High Court would only be permissible on a matter of law. 46. The respondent submitted that the appellate jurisdiction of the High Court in relation to appeals from the Small Claims Court is circumscribed by Section 38 (1) of the Small Claims Court Act, 2016. 47. In brief, Section 38 provides that an appellant can only challenge a decision of the Small Claims Court on points of law. 48. The memorandum of appeal as presented by the appellant does not raise any fundamental misdirection on a matter of law but dwelt largely with factual matters. 49. The appeal therefore is incompetent to the extent that the appellant does not raise a point of law capable of resolution by the court. The issue is of a jurisdictional nature and once the court determines that its jurisdiction has not been properly invoked, the reasonable thing to do would be to down its tools as per the decision of the Court of Appeal in Owners of the Motor Vessel “Lillian S’’ vs Caltex Oil (K) ltd {1989} KECA 48b(KLR) 50. This court has carefully analyzed the submissions by each of the parties and with tremendous respect the appellant appears to be urging this court to review the evidence and reach a finding that other parties ought to have been enjoined in the suit in the lower court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6538/eng@2026-01-29 5

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51. The issue was not one of the matters that the trial court had been called upon to adjudicate on since the appellant did not take out any third -party notices(s). 52. The court determined the matter on the basis of the evidence before it and in respect of the parties before it. The court did not fail to discharge its duty under the law and I find no material misdirection on any matter of law. 53. The appellant has not pointed the court to any errors of law, evidence or procedure to warrant intervention by the court. 54. The appellant has purely raised factual issues thus the jurisdiction of this court was improperly invoked. 55. The upshot of the above is that the appeal is struck out with costs. 56. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF JANUARY, 2026. A. M. MUTETI JUDGE In the presence of: Habiba: Court Assistant Kamau for Appellant Oloo for Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6538/eng@2026-01-29 6

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