Mwangangi v Mwanzia (Civil Appeal E214 of 2023) [2025] KEHC 17881 (KLR) (27 November 2025) (Judgment)
Neutral citation:
[2025] KEHC 17881 (KLR)
Republic of Kenya
Civil Appeal E214 of 2023
EN Maina, J
November 27, 2025
Between
Daniel Mwanzia Mwangangi
Appellant
and
Mercy Nziku Mwanzia
Respondent
(Resident Magistrate) delivered on 28th August 2023 in Machakos Small Claim Court Case No. 137 of 2023)
Judgment
1.In the court below the Appellant through an amended statement of Claim dated 5th April, 2023 claimed from the Respondent special and general damages, costs and future medical expenses arising from an accident involving him and the Respondent’s vehicle Reg. No. KCW 371P. The accident was said to have occurred along the Wote-Mwani Road on 11th February 2023. The Appellant purported to have sustained blunt injury to the left shoulder, lower back, left lower limb and left side of the pelvic region as well as a fracture of the left tibia/fibula bones.
2.In her statement of defence, the Respondent vehemently denied the occurrence of the accident and the particulars of negligence and urged the court to dismiss the suit with costs.
3.After hearing two witnesses for the Appellant’s and considering the evidence, the learned Adjudicator found that the Claimant had not proved his case on a balance of probability and dismissed the suit with costs to the Respondent.
4.Being aggrieved, the Appellant preferred this appeal. The appeal is premised on the following grounds:-
5.Counsel for the parties consented to canvassing the appeal by way of written submissions. The Respondent did not file submissions.
6.In submissions dated 13th May 2025, the Appellant submitted that his evidence was uncontroverted and the Defence by itself was insufficient to challenge the Appellant’s evidence; that based on the police abstract from Makueni Police Station there was no doubt that the accident occurred; that the accident resulted to severe injuries to the Appellant; that the accident was a result of the failure by the Respondent to control his motor vehicle and causing it to overturn and hence the decision of the Adjudicator should be set aside and the Respondent found 100% liable, given that the driver had a higher duty of care than the pedestrian.
7.Additionally, Counsel for the Appellant submitted that the injuries sustained had been proven by the medical report and compensation of Kshs 800,000 would be sufficient compensation for the same as well as Kshs. 130,000/= for future medical expenses and special damages of 35,781/=. In support of his submissions, Counsel for the Appellant placed reliance on the cases of Billiah Matiangi v Kisii Bottlers Limited & another [2021] eKLR, Wellington Nganga Mathiora v Akamba Public Road Services Ltd & Anor [2010] eKLR, Mary Njeri Murigi v Peter Macharia & another [2016] eKLR, Juma v Rabote (Suing as the Legal Representative of the Estate of Leonard Taabu Rabote (Deceased) (Civil Appeal E044 of 2022) [2023] КЕНС 2909 (KLR), Mohammed Younis Quereshi & another v Chris Maina Mathu [2020] eKLR and Orix Oil (Kenya) Limited vs Paul Kabeu & 2 others (2014) eKLR.
Analysis and Determination
8.The court has considered the record, the memorandum of appeal as well as submissions of the parties. The duty of this court as an appellate court exercising jurisdiction under the Small Claims Court under Section 38 of the Small Claims Court Act which section provides as follows;
9.The jurisdiction of the High Court based on the above section is limited to matters of law only. Having gone through the memorandum of appeal and the grounds set out therein, I note that the Appellant raises issues of both law and fact. Most of the grounds of appeal are premised on the allegations that the learned adjudicator erred in both the law and fact. The court will therefore focus on the issues of law only.
10.The question before this court is whether the Appellant proved his case in the court below, on a balance of probabilities, which is the standard of proof in civil cases. The Appellant contends that the evidence that was produced was not disputed as the Respondent only filed a defence which defence is not itself evidence. I agree fully with the submissions of the Appellant on the effect of failure to produce evidence and in so doing I find support in the finding of Odunga J (as he then was) in Linus Nganga Kiongo & 3 Others v Town Council Of Kikuyu [2012] eKLR where he analysed this issue and stated as follows;
11.The defence on the record does not therefore amount to evidence as would have controverted the evidence of the Appellant. It is but a mere pleading.
12.From the record, it is not disputed that on 11th February 2025 an accident involving the Appellant occurred along Wote - Mwani road. This was proved by the oral evidence of the Appellant and CW2 (a Police Officer who visited the scene of the accident) as well as the police abstract dated 1st March 2023.
13.However, the gravamen of this claim is whether the Respondent was liable for the accident which occasioned the injuries to the Appellant. In his evidence the Appellant stated that he did not see the vehicle that hit him. The Police Officer (CW2), who claims to have attended the scene of the accident did not find the motor vehicle at the scene so he did not see it. There was no direct witness to the accident and it is therefore difficult to determine whether the registration number of the accident motor vehicle was the one assigned to it let alone whether it belonged to the Respondent. I am therefore in agreement with the Adjudicator’s finding that the case against the Respondent was not proved to the required standard which is on a balance of probabilities. It is trite that in cases of negligence there can be no liability without fault and the trial Adjudicator was therefore correct in dismissing the claim.
14.As is the procedure, the Adjudicator was still obligated to assess the quantum of damages and I find no error in her assessment. It is my finding that the award would have been reasonable to compensate the Appellant for the injuries sustained.
15.This appeal is not merited and it is dismissed with costs to the Respondent.Orders accordingly.
JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY THIS 27TH DAY OF NOVEMBER, 2025...............................................E. N. MAINAJUDGEIn the presence of:Ms Muthoki for AppellantNo appearance for Kimondo Gachoka for RespondentC/A: Geoffrey