REPUBLIC OF KENYA
IN THE HIGH COURT AT MACHAKOS
HCCA NO. E080 OF 2024
ABIGAIL NDANU (a minor suing through next friend one
STEPHEN KIOKO KISILI) ......................................................................APPELLANT
-VERSUS-
MUEMA NDUNGI .............................................................................RESPONDENT
(Being an appeal from the judgement & ruling of Hon. B. A. Luova delivered on 4th of March 2024 in Machakos Small Claims Court SCCC/E851/2023- Abigail Ndanu (suing through next friend one Stephen Kioko Kisili) vs Muema Ndungi)
JUDGEMENT
Background
1. By a Statement of Claim dated 27/09/23 and filed in court on 28/09/23, the Claimant sought for the following orders;
a) General damages
b) Special damages 5,750/-
c) Costs of this claim d) Interest on (a) and (b) at Court rate.
2. The Claimant's case was that on 28/08/2023, she was travelling as a passenger aboard motor vehicle registration number KBR 743J along Nairobi- Mombasa road whereupon reaching at Mlima Kiu area, the Respondent or his authorized driver, controlled motor vehicle registration number KBX 194X -ZD 4027 negligently and allowed the same to smash, plough into, hit, joint the road without indicating and ensuring the road is clear as a result of which the Claimant was occasioned serious bodily injuries.
3. The Respondent filed his Response to the Statement of Claim on 13/10/23 and denied the claim and particularized Claimant's negligence. The matter proceeded under Section 30 of the SCCA by way of documents and the Court gave direction on filing submissions and at the time of writing the judgment, both Counsel had filed the submissions. Judgment was slated for 21/12/23. On 21/12/23, the Court inquired from the Respondent's advocate whether she was served with documents in this matter and she answered in the affirmative. Further, the Court made an inquiry in the interest of justice if Counsel had an objection if the Claimant's Counsel is granted leave to file Claimant's documents as there seemed to have been an oversight from their part. Counsel did not object and Court directed Claimant's Counsel to file the documents and a further judgment date was slated for 16/1/24. On 16/1/24, the Court noted that the orders given to Claimant's Counsel had not been complied with instead, Counsel had filed documents for Machakos SCC No. E852 of 2023 whose medical documents filed belonged to one Stephen Kioko and not the Claimant in this matter. A further date for judgment was slated for 25/01/24 with orders that Claimant's Counsel to supply Court with the Claimant's document by close of business on 17/01/24.
4. Again, on 20/01/24, the trial Court noted that the Claimant's Counsel did not comply with Court's orders and the Respondent then filed the documents served upon them. Upon perusal of the same, the trial Adjudicator noted that the Respondent's Counsel was also not served with medical documents for the Claimant save for the Authority to Act. The documents in the Respondent's custody were similar to what was in the Court file.
5. The Claimant filed a list of documents dated 27/09/23 where 9 documents were listed. However, the only document filed with the Claim is the Authority to Act found at page 10 of the statement of claim. Parties had consented to proceed by way of documents as per Section 30 of the SCCA.
6. The trial Adjudicator observed that no documents had been filed and for that reason, the she found that the allegations on negligence by the Claimant in the statement of Claim had not been proved and as such, the Claim failed, and she thus dismissed the Claim with costs to the Respondent.
7. The Appellant being aggrieved by the decision of the trial court lodged this appeal vide a Memorandum of Appeal dated 4th March 2024 citing the following grounds :-
a) THAT the learned magistrate erred in law and in fact in failing to consider her list of documents annexed to the statement of claim dated 27th September 2023 and application dated 25thJanuary 2024 and thus occasioned the Appellant a miscarriage of justice.
b) THAT the learned magistrate erred in law and in fact in failing to consider the evidence tendered by the Appellant which proved the respondent was liable and this occasioned the appellant a miscarriage of justice.
c) THAT the learned magistrate erred in law in failing to consider her statement of claim dated 27th September 2023 and application dated 25th January 2024 which raised triable issues.
d) THAT the learned magistrate's decision dismissing their statement of claim dated 7th September 2023 and application dated 25th January 2024 occasioned a miscarriage of justice.
e) THAT the learned magistrate erred in law and in fact in failing to consider their claim was part of a series and three out of the other claims were dispensed with and judgments issued.
f) THAT the learned magistrate erred in law and in fact by failing to observe Section IA, 1B of the Civil Procedure Act and Article 159 of the Constitution of Kenya, 2010, thereby arriving at a wrong decision.
g) THAT the learned magistrate erred in by applying the wrong principles in law thereby arriving at a wrong decision.
h) THAT the learned magistrate erred in law and in fact by wholly misapplying their judicial discretion in the circumstances obtaining in this case.
8. The appeal was canvassed through written submissions. The Appellant’s submissions are dated 12/03/2025 whilst the Respondent’s submissions are dated 19/05/2025.
Analysis and Determination
9. This being the final appeal to this court, I am reminded of the provisions Under Section 38(1) of the Small Claims Court Act, 2016 an appeal to this court is limited to matters of law only. Accordingly, the court is not permitted to substitute the subordinate court’s decision with its own conclusions based on its own analysis and appreciation of the facts unless the findings are so perverse that no reasonable tribunal would have arrived at them. See John Munuve Mati v Returning Officer Mwingi North Constituency & 2 others [2018] eKLR.
10. It is the Appellant’s submissions that the trial court discovered the fact that the Claimant’s list and bundle of documents was missing before delivery of the judgment and ordered the Claimant to supply the court with a copy of the list and bundle of documents which orders were complied with on the 22nd December 2023 through a forwarding letter erroneously captioned as STEPHEN KIOKO KISILI (a minor suing through next friend one ABIGAIL NDANU) instead of ABIGAIL NDANU (a minor suing through next friend one STEPHEN KIOKO KISILI) but the documents attached to the forwarding letter belonged to ABIGAIL NDANU. The said fact was not within counsel for the Appellant’s knowledge at the time of adopting the consent that the parties were to proceed with the matter by way of Section 30 of the Small Claims Act.
11. The Appellant submits that indeed he filed and served her submissions to the Respondent, in the said submissions by the Appellant, the Appellant relied on medical report treatment notes and abstract as well as the P3, indeed the statement is adversely mentioned in the submissions, but the same was inadvertently omitted while filing the Statement of Claim.
12. The Appellant submits that from the foregoing, it is evident that the Claimant’s medical report treatment notes and abstract as well as the P3 that the Appellant relied on in her submissions were inadvertently omitted at the time of filing the statement of claim but the error was remedied on the 22nd December 2023 in compliance with the orders of the court issued on the 21st December 2023. Therefore, the fact that it was relied on but was inadvertently omitted is clearly an error on the record.
13. The Respondent submitted that Section 30 of the Small Claims Court Act provides that, "Subject to agreement of all parties to the proceedings, the Court may determine any claim and give such orders as it considers fit and just on the basis of documents and written submissions, statements or other submissions presented to the Court." In this present matter, both parties agreed by consent to proceed under the aforementioned Section and duly filed and served submissions thereto. However, upon retiring to write the judgment, the court discovered that the Claimant's bundle of documents had not been filed. On the set judgment date, the court after confirming that the Claimant's bundle of documents was served to the Respondent, directed that the same is filed within the Court Registry and set a new judgement date for 16/01/2024.
14. That it is confirmed by the Ruling by the trial court dated 4th March 2024 that following the Court's direction, the Claimant's counsel proceeded to file documents but for the wrong party and suit in that the party indicated as the Claimant was the guardian themselves and not the minor who was the Claimant in the matter. On 16/01/2024, the Court being gracious and indulgent while taking note to observe their overriding objective and avoid any miscarriage of justice, allowed the Claimant's counsel to again file the correct documents by close of business the next day which directions the Claimant's counsel did not adhere to. This was a show of lack of diligence and seriousness by Claimant's counsel given the kind consideration the trial court accorded them despite the time limits. The court proceeded to write its judgement dismissing the Claimant's claim with costs to Respondent. The Claimant thereafter filed an application to dismiss those orders and reinstate the Statement of Claim which application was dismissed and the same is now being challenged before this court.
15. Being that the matter was proceeding by way of documents, lack of annexure and/or production of relevant documents was fatal to the Claimant's claim and rendering the Statement of Claim deserving of dismissal and thus the Application was rightly disallowed. Additionally, Rule 5 (3) of the Small Claims Court Rules provides that any person claiming compensation for personal injuries shall attach a medical report from a licensed medical practitioner and any receipts in respect of medical expenses incurred on treatment, which rule the Claimant did not adhere to. The Statement of Claim before the trial court hence lacked merit as it failed to establish any cause of action. The Respondent, therefore, humbly submits that the Statement of claim, in the absence of the claim supporting documents and in particular a medical report and treatment receipts, did not raise any triable issues, was an abuse of the court process and a waste of precious judicial time. Similarly, the application only worked to waste the court's time and subject the Claimant to endless litigation.
16. The Respondent further submitted that the Appellant cannot purport that the trial court failed to observe Section IA, 1B of the Civil Procedure Act and Article 159 of the Constitution of Kenya, 2010 when the trial court's indulgence of the Claimant's counsel in efforts to observe just that has been evidenced in the Ruling dated 4th March 2024. Section IA (3) of the Civil Procedure Act provides that:
“A party to civil proceedings or an Advocate for such a party is under a duty to assist the court to further the overriding objective of the Act, and to that effect, to participate in the process of the court and to comply with the directions and orders of the court".
17. That the Claimant's counsel was in violation of the above provision thus failing in his duty to the court and to his client. It cannot be expected that the trial court would overlook the Claimant's counsel's omission and render a decision based on evidence that was not before the court or evidence not filed by the party in the subject matter. The failure on the counsel's part was not merely a technicality but an omission that went to the substance and legitimacy of the claim before the trial court.
18. I have perused through the Small Claim’s Court trial record, the judgement of the trial Adjudicator, the grounds of appeal and submissions by Praties’ Counsel. To me, the major issue that stand out for consideration by this court whether the trial court erred in law in dismissing the Claimant/Appellant’s Claim.
19. The Appellant’s advocate is in admission that he filed and served the submissions upon the Respondent, in the said submissions, the Appellant relied on medical report, treatment notes and police abstract as well as the P3 form, indeed the statement is adversely mentioned in the submissions, but the same was inadvertently omitted while filing the Statement of Claim.
20. That from the foregoing, it is evident that the Claimant’s medical report treatment notes and police abstract as well as the P3 form that the Appellant relied on in her submissions were inadvertently omitted at the time of filing the statement of claim but the error was remedied on the 22nd December 2023 in compliance with the orders of the court issued on the 21st December 2023. Therefore, the fact that it was relied on but was inadvertently omitted is clearly an error on the record.
21. This court’s considered view is that if indeed there was an error on the trial court’s record, the same ought to have been formally brought to the attention of the trial court for revision or rectification and not through this appeal. An issue of an error on the trial court’s record is a matter of fact which cannot be determined on an appeal. This will be in contravention of the provisions of Section 38 (1) of the Small Claims Court Act, 2016 which limits an appeal to this court to matters of law only.
22. Accordingly, I find the appeal herein to be lacking in merit, the same is dismissed with no order as to costs.
23. It is hereby so ordered.
RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 11TH DECEMBER 2025
NOEL. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 11TH DECEMBER 2025
In the presence of:-
IN THE HIGH COURT AT MACHAKOS
HCCA NO. E080 OF 2024
ABIGAIL NDANU (a minor suing through next friend one
STEPHEN KIOKO KISILI) ......................................................................APPELLANT
-VERSUS-
MUEMA NDUNGI .............................................................................RESPONDENT
(Being an appeal from the judgement & ruling of Hon. B. A. Luova delivered on 4th of March 2024 in Machakos Small Claims Court SCCC/E851/2023- Abigail Ndanu (suing through next friend one Stephen Kioko Kisili) vs Muema Ndungi)
JUDGEMENT
Background
1. By a Statement of Claim dated 27/09/23 and filed in court on 28/09/23, the Claimant sought for the following orders;
a) General damages
b) Special damages 5,750/-
c) Costs of this claim d) Interest on (a) and (b) at Court rate.
2. The Claimant's case was that on 28/08/2023, she was travelling as a passenger aboard motor vehicle registration number KBR 743J along Nairobi- Mombasa road whereupon reaching at Mlima Kiu area, the Respondent or his authorized driver, controlled motor vehicle registration number KBX 194X -ZD 4027 negligently and allowed the same to smash, plough into, hit, joint the road without indicating and ensuring the road is clear as a result of which the Claimant was occasioned serious bodily injuries.
3. The Respondent filed his Response to the Statement of Claim on 13/10/23 and denied the claim and particularized Claimant's negligence. The matter proceeded under Section 30 of the SCCA by way of documents and the Court gave direction on filing submissions and at the time of writing the judgment, both Counsel had filed the submissions. Judgment was slated for 21/12/23. On 21/12/23, the Court inquired from the Respondent's advocate whether she was served with documents in this matter and she answered in the affirmative. Further, the Court made an inquiry in the interest of justice if Counsel had an objection if the Claimant's Counsel is granted leave to file Claimant's documents as there seemed to have been an oversight from their part. Counsel did not object and Court directed Claimant's Counsel to file the documents and a further judgment date was slated for 16/1/24. On 16/1/24, the Court noted that the orders given to Claimant's Counsel had not been complied with instead, Counsel had filed documents for Machakos SCC No. E852 of 2023 whose medical documents filed belonged to one Stephen Kioko and not the Claimant in this matter. A further date for judgment was slated for 25/01/24 with orders that Claimant's Counsel to supply Court with the Claimant's document by close of business on 17/01/24.
4. Again, on 20/01/24, the trial Court noted that the Claimant's Counsel did not comply with Court's orders and the Respondent then filed the documents served upon them. Upon perusal of the same, the trial Adjudicator noted that the Respondent's Counsel was also not served with medical documents for the Claimant save for the Authority to Act. The documents in the Respondent's custody were similar to what was in the Court file.
5. The Claimant filed a list of documents dated 27/09/23 where 9 documents were listed. However, the only document filed with the Claim is the Authority to Act found at page 10 of the statement of claim. Parties had consented to proceed by way of documents as per Section 30 of the SCCA.
6. The trial Adjudicator observed that no documents had been filed and for that reason, the she found that the allegations on negligence by the Claimant in the statement of Claim had not been proved and as such, the Claim failed, and she thus dismissed the Claim with costs to the Respondent.
7. The Appellant being aggrieved by the decision of the trial court lodged this appeal vide a Memorandum of Appeal dated 4th March 2024 citing the following grounds :-
a) THAT the learned magistrate erred in law and in fact in failing to consider her list of documents annexed to the statement of claim dated 27th September 2023 and application dated 25thJanuary 2024 and thus occasioned the Appellant a miscarriage of justice.
b) THAT the learned magistrate erred in law and in fact in failing to consider the evidence tendered by the Appellant which proved the respondent was liable and this occasioned the appellant a miscarriage of justice.
c) THAT the learned magistrate erred in law in failing to consider her statement of claim dated 27th September 2023 and application dated 25th January 2024 which raised triable issues.
d) THAT the learned magistrate's decision dismissing their statement of claim dated 7th September 2023 and application dated 25th January 2024 occasioned a miscarriage of justice.
e) THAT the learned magistrate erred in law and in fact in failing to consider their claim was part of a series and three out of the other claims were dispensed with and judgments issued.
f) THAT the learned magistrate erred in law and in fact by failing to observe Section IA, 1B of the Civil Procedure Act and Article 159 of the Constitution of Kenya, 2010, thereby arriving at a wrong decision.
g) THAT the learned magistrate erred in by applying the wrong principles in law thereby arriving at a wrong decision.
h) THAT the learned magistrate erred in law and in fact by wholly misapplying their judicial discretion in the circumstances obtaining in this case.
8. The appeal was canvassed through written submissions. The Appellant’s submissions are dated 12/03/2025 whilst the Respondent’s submissions are dated 19/05/2025.
Analysis and Determination
9. This being the final appeal to this court, I am reminded of the provisions Under Section 38(1) of the Small Claims Court Act, 2016 an appeal to this court is limited to matters of law only. Accordingly, the court is not permitted to substitute the subordinate court’s decision with its own conclusions based on its own analysis and appreciation of the facts unless the findings are so perverse that no reasonable tribunal would have arrived at them. See John Munuve Mati v Returning Officer Mwingi North Constituency & 2 others [2018] eKLR.
10. It is the Appellant’s submissions that the trial court discovered the fact that the Claimant’s list and bundle of documents was missing before delivery of the judgment and ordered the Claimant to supply the court with a copy of the list and bundle of documents which orders were complied with on the 22nd December 2023 through a forwarding letter erroneously captioned as STEPHEN KIOKO KISILI (a minor suing through next friend one ABIGAIL NDANU) instead of ABIGAIL NDANU (a minor suing through next friend one STEPHEN KIOKO KISILI) but the documents attached to the forwarding letter belonged to ABIGAIL NDANU. The said fact was not within counsel for the Appellant’s knowledge at the time of adopting the consent that the parties were to proceed with the matter by way of Section 30 of the Small Claims Act.
11. The Appellant submits that indeed he filed and served her submissions to the Respondent, in the said submissions by the Appellant, the Appellant relied on medical report treatment notes and abstract as well as the P3, indeed the statement is adversely mentioned in the submissions, but the same was inadvertently omitted while filing the Statement of Claim.
12. The Appellant submits that from the foregoing, it is evident that the Claimant’s medical report treatment notes and abstract as well as the P3 that the Appellant relied on in her submissions were inadvertently omitted at the time of filing the statement of claim but the error was remedied on the 22nd December 2023 in compliance with the orders of the court issued on the 21st December 2023. Therefore, the fact that it was relied on but was inadvertently omitted is clearly an error on the record.
13. The Respondent submitted that Section 30 of the Small Claims Court Act provides that, "Subject to agreement of all parties to the proceedings, the Court may determine any claim and give such orders as it considers fit and just on the basis of documents and written submissions, statements or other submissions presented to the Court." In this present matter, both parties agreed by consent to proceed under the aforementioned Section and duly filed and served submissions thereto. However, upon retiring to write the judgment, the court discovered that the Claimant's bundle of documents had not been filed. On the set judgment date, the court after confirming that the Claimant's bundle of documents was served to the Respondent, directed that the same is filed within the Court Registry and set a new judgement date for 16/01/2024.
14. That it is confirmed by the Ruling by the trial court dated 4th March 2024 that following the Court's direction, the Claimant's counsel proceeded to file documents but for the wrong party and suit in that the party indicated as the Claimant was the guardian themselves and not the minor who was the Claimant in the matter. On 16/01/2024, the Court being gracious and indulgent while taking note to observe their overriding objective and avoid any miscarriage of justice, allowed the Claimant's counsel to again file the correct documents by close of business the next day which directions the Claimant's counsel did not adhere to. This was a show of lack of diligence and seriousness by Claimant's counsel given the kind consideration the trial court accorded them despite the time limits. The court proceeded to write its judgement dismissing the Claimant's claim with costs to Respondent. The Claimant thereafter filed an application to dismiss those orders and reinstate the Statement of Claim which application was dismissed and the same is now being challenged before this court.
15. Being that the matter was proceeding by way of documents, lack of annexure and/or production of relevant documents was fatal to the Claimant's claim and rendering the Statement of Claim deserving of dismissal and thus the Application was rightly disallowed. Additionally, Rule 5 (3) of the Small Claims Court Rules provides that any person claiming compensation for personal injuries shall attach a medical report from a licensed medical practitioner and any receipts in respect of medical expenses incurred on treatment, which rule the Claimant did not adhere to. The Statement of Claim before the trial court hence lacked merit as it failed to establish any cause of action. The Respondent, therefore, humbly submits that the Statement of claim, in the absence of the claim supporting documents and in particular a medical report and treatment receipts, did not raise any triable issues, was an abuse of the court process and a waste of precious judicial time. Similarly, the application only worked to waste the court's time and subject the Claimant to endless litigation.
16. The Respondent further submitted that the Appellant cannot purport that the trial court failed to observe Section IA, 1B of the Civil Procedure Act and Article 159 of the Constitution of Kenya, 2010 when the trial court's indulgence of the Claimant's counsel in efforts to observe just that has been evidenced in the Ruling dated 4th March 2024. Section IA (3) of the Civil Procedure Act provides that:
“A party to civil proceedings or an Advocate for such a party is under a duty to assist the court to further the overriding objective of the Act, and to that effect, to participate in the process of the court and to comply with the directions and orders of the court".
17. That the Claimant's counsel was in violation of the above provision thus failing in his duty to the court and to his client. It cannot be expected that the trial court would overlook the Claimant's counsel's omission and render a decision based on evidence that was not before the court or evidence not filed by the party in the subject matter. The failure on the counsel's part was not merely a technicality but an omission that went to the substance and legitimacy of the claim before the trial court.
18. I have perused through the Small Claim’s Court trial record, the judgement of the trial Adjudicator, the grounds of appeal and submissions by Praties’ Counsel. To me, the major issue that stand out for consideration by this court whether the trial court erred in law in dismissing the Claimant/Appellant’s Claim.
19. The Appellant’s advocate is in admission that he filed and served the submissions upon the Respondent, in the said submissions, the Appellant relied on medical report, treatment notes and police abstract as well as the P3 form, indeed the statement is adversely mentioned in the submissions, but the same was inadvertently omitted while filing the Statement of Claim.
20. That from the foregoing, it is evident that the Claimant’s medical report treatment notes and police abstract as well as the P3 form that the Appellant relied on in her submissions were inadvertently omitted at the time of filing the statement of claim but the error was remedied on the 22nd December 2023 in compliance with the orders of the court issued on the 21st December 2023. Therefore, the fact that it was relied on but was inadvertently omitted is clearly an error on the record.
21. This court’s considered view is that if indeed there was an error on the trial court’s record, the same ought to have been formally brought to the attention of the trial court for revision or rectification and not through this appeal. An issue of an error on the trial court’s record is a matter of fact which cannot be determined on an appeal. This will be in contravention of the provisions of Section 38 (1) of the Small Claims Court Act, 2016 which limits an appeal to this court to matters of law only.
22. Accordingly, I find the appeal herein to be lacking in merit, the same is dismissed with no order as to costs.
23. It is hereby so ordered.
RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 11TH DECEMBER 2025
NOEL. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 11TH DECEMBER 2025
In the presence of:-