Boniface Kyalo Muthwale v Agnes Ndunda & 3 others

b)THAT the learned trial magistrate erred in in law and failing to take into account the evidence of DW1 and CW1 presented at the trial court and in particular the claimants witness 1 which showed the Claimant or his duly authorized agent was substantially to blame for causing the accident giving rise to the suit at the lower court. c)THAT the learned magistrate erred in law and fact in making a finding that the Respondent had proved its case against the Appellant. d)THAT the learned trial magistrate erred in law and in fact in failing to make a finding that the evidence presented by the Respondent could not sustain the pleaded claim. e)THAT the learned magistrate erred in law and fact by wholly disregarding submissions tendered by the Appellant before arriving at her decision. f) THAT the learned magistrate erred in law and fact in meting out a decision that was extremely harsh to the Appellant without having due regard to the intervening factors and the circumstances of the matter before him 2. In the said Appeals, the Appellant prays that: a)The Court does set aside the judgement of the Learned adjudicator/Magistrate finding that the Appellant was entirely to blame the accident giving rise to the suit at the lower court. b)The court does award the appellant the costs of this appeal and costs in the trial court. 3. The appeal was canvassed through written submissions. 4. The Appellant submitted that the trial court misapprehended the evidence presented, failed to consider critical issues raised in the 2

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defence, and arrived at a decision that was against the weight of evidence. 5. The Respondents submitted that the Judgement of the trial court is sound both in law and fact and the instant appeal should be dismissed as devoid of merit. Analysis and Determination 6. This being an appeal from the Small Claims Court, the jurisdiction of the Court is circumscribed in section 38 of the Small Claims Court Act. Section 38 of the Small Claims Court Act provides as follows: 1.A person aggrieved by the decision or an order of the Court may appeal against that decision or an order to the High Court on matters of law. 2. An appeal from any decision or order referred to in sub section (1) shall be final. 7. The above provision means that this Court can only intervene if the evidence on record does not reasonably support the conclusions made by the trial court. More specifically, an appeal before this Court is essentially limited to points of law. 8. I have carefully perused the Record of Appeal, the grounds of appeal and rival submissions by the parties. The pertinent issue for determination herein is whether this court should allow the appeal and set aside the trial court’s judgement. 9. The matter before the trial Court arose from a road traffic accident in which the Respondents, as the Claimants, sought general damages for pain, suffering and loss of amenities, special damages in the sum of Kshs.4,160/=, costs of the suit and interest at court rates. The trial court entered judgment against the 2nd Respondent/Appellant in favour of the Claimants/Respondents herein and awarded damages accordingly. 9. As regards liability, I have considered the proceedings before the trial court and noted that by consent of Counsel, Machakos 3

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Small Claims Court Civil Claim No. 612 of 2022 was chosen as the lead file and the evidence of the 1st Respondent and 2nd Respondent’s witnesses and that of the police officer recorded in that file was to apply to this case to determine liability. 10. From the totality of the evidence adduced, there is no doubt that an accident occurred involving motor vehicle registration No. KDH 701C which was being owned jointly by the Respondents (Appellant and 1st Respondent) and motor cycle registration No. KMEE 968F which was being ridden by Benson Malei Kituku and on which the Agnes Mwongeli Ndunda was a pillion passenger (Claimants/ Respondent) and that as a result of the accident, the Claimants/ Respondents sustained injuries. 11. Flowing from the analysis of the evidence tendered before the trial court, the trial Adjudicator found that no evidence was led by the Claimant (Respondent herein) to prove negligence on the part of the 1st Respondent and the evidence of the 1st Respondent was not challenged by either the Claimant or the 2nd Respondent. Therefore, the claim against the 1st Respondent was dismissed with costs for the simple reason that the demand letter dated 16/11/2022 was only addressed to the 2nd Respondent and copied to his insurer and there was no evidence the said letter was copied to the 1st Respondent. 12. I have observed that the 2nd Respondent was found to be negligent while driving and thus occasioning the accident. He failed to act safely and responsibly while driving and failed to control the motor vehicle thus hitting the motor cycle from the rear hence the 2nd Respondent was held 100% liable for the accident. In Vehicle & Equipment Leasing Ltd v Ibrahim Otieno [2022] KEHC 6233 (KLR) it was held that:“When a motorist rams into the motorist ahead of him, prima facie he is liable for failure to keep safe distance, unless on a balance of probabilities he can adduce evidence to show that the motorist ahead of him is to blame. The appellant did not discharge this obligation. The learned trial 4

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magistrate was therefore right in finding him 100% liable for the accident” 13. On quantum, I am aware that 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. 14. In the case of Maraga V Musila (1984) 1 KLR 251, 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”. 15. It is my considered view that the issues raised in the Appellant’s appeal are majorly on points of facts on both liability and quantum and not on points of law, this Court is not empowered to sit on appeal on the same. In addressing a point of law and point of fact, in the case of J N & 5 Others -vs- Board of Management, St. G School Nairobi & Another [2017] eKLR, Justice Mativo stated thus: “In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence as well as inferences arising from those facts. In law, a question of fact, also known as a point of fact, is a question that must be 5

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answered by reference to facts and evidence as well as inferences arising from those facts. Such a question is distinct from a question of law, which must be answered by applying relevant legal principles. The answer to a question of fact (a "finding of fact") usually depends on particular circumstances or factual situations.” 16. In the final analysis, I find that the Respondents proved liability against the Appellant on a balance of probability and that the trial court did not err on any points of law in its judgement. 17. The upshot is that, the appeals herein do not succeed. The same are dismissed with costs to the Respondents assessed at Kshs.15,000/= on each appeal. JUDGEMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 16TH APRIL 2026 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 16TH APRIL 2026 6

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