1. This is an appeal against the decision of the Small Claims Court delivered by the Hon Gatambia Ndungu on 18th July 2023 in Mombasa SCC NO E051 of 2023; Ali Karisa Buyu v Nyebwana Mzee Omar. In that decision, the lower Court found that the subject motor vehicle, registration number KBN 231B, belonged to the appellant. The vehicle was stolen on 4th December 2012 and recovered on 5th January 2022. During the period it was missing, it was allegedly sold by Simon Miano Kamau on 27th November 2014 for a consideration of Kes. 470,000.00.
2. The Court dismissed the prayer for material damages to the motor vehicle and damages for the tort of conversion. The Court also dismissed the counterclaim for Kes. 50,000 in respect of a new engine allegedly installed by the respondent in the motor vehicle.
3. The Court held that the appellant and the respondent were both victims of the same crime, “though in different aspects”, and that they were at liberty to pursue Simon Miano Kamau in separate proceedings, if they so chose. The Court ordered that the parties bear their own costs of the suit.
4. The appellant was aggrieved by the said decision and filed an appeal to this Court. The Memorandum of Appeal raises 12 grounds that I will not reproduce here.
5. This is the first and only appeal allowed by the law. Under Section 38 of the Small Claims Court Act, 2016, a person aggrieved by the decision or order of the Court may appeal against the decision or order to the High Court on matters of law only. The decision of the High Court on such a matter shall be final.
6. I must thus peruse the proceedings and the impugned decision of the Court below and determine if the grounds of appeal raise questions of law.
7. The duty of the first appellate court is well understood. It is to reassess, re-analyze, and reevaluate the evidence adduced in the trial Court and thereafter draw its own conclusion, bearing in mind that it did not see or hear the witnesses. I am guided in stating this by two cited cases, firstly that of the Court of Appeal for Eastern Africa in Selle v Associated Motor Boat Co Ltd (1969) EA 123. In the said decision, Sir Clement de Lestang stated that:
“This Court must consider the evidence, reevaluate it itself and draw its own conclusion, though in doing so, it should always bear in mind that it neither heard witnesses and should make due allowance in this respect. However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances, or probabilities, materially to estimate the evidence or if the impression based on demeanor of a witness is inconsistent with the evidence in the case generally.”
8. Further, in the case of Peters vs Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows:-
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
9. It would appear to me that the real issue is whether the respondent was liable for the tort of conversion or not. What did the evidence reveal? The appellant sought judgment for Kes. 99,700, special damages or Kes. 5,000, general damages for conversion and costs of the suit.
10. In a response filed in March 2023, the respondent claimed that she bought the motor vehicle from Simon Miano Kamau, who had on his part bought it from Joram Njuguna, who had obtained it from Boaz Ochieng Onyango and that it had been in her possession for 8 years. The purchase price was Kes. 470,000.00. She counterclaimed for Kes. 50,000 on the ground that she purchased a brand new engine worth Kes. 50,000 for the suit motor vehicle.
11. The matter was heard by the Court below by way of Viva voce evidence. After the conclusion of the oral hearing, the parties filed written submissions, which the Court below evidently considered while preparing its reasoned decision.
12. This appeal was canvassed through written submissions. The appellant’s submissions are dated 3rd February 2025. Those for the Respondent are dated 18th March 2025.
13. As earlier stated, this appeal turns on whether there was a tort of conversion. Conversion is an intentional act or wrongful interference with another person’s personal property, depriving them of its use and possession, or treating it as one’s own. Conversion is a strict liability tort that does not require malice or knowledge that the property belongs to another. For conversion to be proved, the plaintiff must show that there was an intent to take the personal property and to use it as one’s own.
14. Black’s Law Dictionary, 9th Edition, defines conversion as appropriating the property of another to one’s own benefit or to the benefit of another. There is no doubt that the car belonged to the appellant. The search, which produced an exhibit, says as much. The respondent conceded that that was the case and did, in fact, surrender the motor vehicle to the authorities upon being notified. The Respondent had possession of the motor vehicle for 8 years, during which she used it exclusively and purchased insurance for it, while denying the appellant any use or benefit of it.
15. In the case of Peter Ndungu Ngae v Ann Waithera Ndungu & 2 others [2014]eKLR, the Court cited with approval what the authors of Halsbury’s Laws of England stated in the 4th Edition, at pages 355, paragraph 548, to wit, that:
“To constitute the first form of conversion, there must be a positive wrongful act of dealing with the goods in a manner inconsistent with the owner’s rights and an intention in doing so to deny the owner’s rights or to assert a right inconsistent with them. This inconsistency is the gist of the action. There need not be any knowledge on the part of the person sued that the goods belonged to someone else; nor need there be any positive intention to challenge the true owner’s rights. Liability in conversion is strict, and fraud or other dishonesty is not a necessary ingredient in the action.”
16. I am satisfied that the respondent did not have a title to the car. She did not acquire a good title to the motor vehicle from the purchaser, as it was evidently obtained by Boaz Ochieng Onyango unlawfully. I am in agreement with the counsel for the appellant that under Section 23(1) of the Sale of Goods Act and the principle of “nemo dat quod non habet”, the respondent could not have had a better title than the one who allegedly sold it to her, and that the defect in title remains regardless of how many times the car changed hands. In my view, the frequent transfers in 2013/2014 bespeak a fraudulent intent to defeat the true owner's claim.
17. I have perused the judgment. I note that the learned magistrate erred to the extent that he appears not to have fully analyzed the evidence nor to have considered the parties' submissions. In the circumstances, I am of the view that his decision cannot stand and must be set aside.
18. What orders should the Court issue? The appellant sought special damages of Kes. 99,700 and Kes. 5,000 (for repair charges, loss assessors' fees), and general damages for conversion and costs of the suit.
19. The appellant was required to specifically plead special damages and to prove them. In my view, this burden was met insofar as the appellant showed that the repair charge of Kes. 99,700 was paid, and the loss assessor's fee was Kes. 5,000.
20. On general damages for conversion, I am guided by the decision of the Court in the case of Patrick Muturi v Kenindia Assurance Company Ltd [1993] KEHC 169 (KLR), where it was held that:
“It was also stated by the former Court of Appeal for Eastern Africa, consisting of Sir Charles Griffin, CJ (Uganda), Pickering, CJ (Zanzibar), and Thomas, J (Kenya), in 1930, in the Kenyan case of Abdalla Jaffer Thawer v Archibald Clark [1929-30] 12 K L R 22, that in actions for conversions, the general rule is that the damages are at least the value of the thing converted. Special damage over and above the value of the goods is recoverable in the same action if laid in the plaint and proved at the hearing of the suit. So soon as the defendant removes the article by taking it away from the plaintiff a liability for the value of the article, and for any special damage arising directly out of the deprivation suffered by the plaintiff, is incurred by the defendant. That liability cannot be avoided by a return of the article, but a restitution can be set up and proved by the defendant in mitigation of the damages claimed: abid. The rule is similar in detinue. In all these cases, a plaintiff who has been deprived of his chattel is ordinarily entitled to its full value, together with any special loss he may have suffered as the result of the unlawful detention or conversion or destruction or loss.”
21. The appellant lost his motor vehicle for 9 years. He was unable to use it for the said period. I agree that he ought to be compensated for it. The fact compensation is the market value of the motor vehicle. Since it was allegedly sold for Kes. 470,000, it is my view that the said sum is indeed the market value of the property. In the circumstances, I find and hold that the market value of the motor vehicle is Kes. 470,000, and that the said figure is the fair compensation for damage suffered by the appellant.
22. Having succeeded, and noting that under Section 27 of the Civil Procedure Act, costs ordinarily follow the event, I award the appellant costs of the appeal and in the Court below.
23. The upshot of the foregoing is that:
i. I set aside the judgment of the Court below and substitute it with an order allowing the statement of claim in the following terms:
a. General damages of Kes. 470,000/- for conversion;
b. Repair charges of Kes. 99,700/-;
c. Special damages of Kes. 5,000/-;
ii. I award the appellant the costs of the appeal and of the Court below, to be agreed or taxed.
24. It is so ordered.
Dated and signed in Nairobi, this 28th day of April 2026.
2. The Court dismissed the prayer for material damages to the motor vehicle and damages for the tort of conversion. The Court also dismissed the counterclaim for Kes. 50,000 in respect of a new engine allegedly installed by the respondent in the motor vehicle.
3. The Court held that the appellant and the respondent were both victims of the same crime, “though in different aspects”, and that they were at liberty to pursue Simon Miano Kamau in separate proceedings, if they so chose. The Court ordered that the parties bear their own costs of the suit.
4. The appellant was aggrieved by the said decision and filed an appeal to this Court. The Memorandum of Appeal raises 12 grounds that I will not reproduce here.
5. This is the first and only appeal allowed by the law. Under Section 38 of the Small Claims Court Act, 2016, a person aggrieved by the decision or order of the Court may appeal against the decision or order to the High Court on matters of law only. The decision of the High Court on such a matter shall be final.
6. I must thus peruse the proceedings and the impugned decision of the Court below and determine if the grounds of appeal raise questions of law.
7. The duty of the first appellate court is well understood. It is to reassess, re-analyze, and reevaluate the evidence adduced in the trial Court and thereafter draw its own conclusion, bearing in mind that it did not see or hear the witnesses. I am guided in stating this by two cited cases, firstly that of the Court of Appeal for Eastern Africa in Selle v Associated Motor Boat Co Ltd (1969) EA 123. In the said decision, Sir Clement de Lestang stated that:
“This Court must consider the evidence, reevaluate it itself and draw its own conclusion, though in doing so, it should always bear in mind that it neither heard witnesses and should make due allowance in this respect. However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances, or probabilities, materially to estimate the evidence or if the impression based on demeanor of a witness is inconsistent with the evidence in the case generally.”
8. Further, in the case of Peters vs Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows:-
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
9. It would appear to me that the real issue is whether the respondent was liable for the tort of conversion or not. What did the evidence reveal? The appellant sought judgment for Kes. 99,700, special damages or Kes. 5,000, general damages for conversion and costs of the suit.
10. In a response filed in March 2023, the respondent claimed that she bought the motor vehicle from Simon Miano Kamau, who had on his part bought it from Joram Njuguna, who had obtained it from Boaz Ochieng Onyango and that it had been in her possession for 8 years. The purchase price was Kes. 470,000.00. She counterclaimed for Kes. 50,000 on the ground that she purchased a brand new engine worth Kes. 50,000 for the suit motor vehicle.
11. The matter was heard by the Court below by way of Viva voce evidence. After the conclusion of the oral hearing, the parties filed written submissions, which the Court below evidently considered while preparing its reasoned decision.
12. This appeal was canvassed through written submissions. The appellant’s submissions are dated 3rd February 2025. Those for the Respondent are dated 18th March 2025.
13. As earlier stated, this appeal turns on whether there was a tort of conversion. Conversion is an intentional act or wrongful interference with another person’s personal property, depriving them of its use and possession, or treating it as one’s own. Conversion is a strict liability tort that does not require malice or knowledge that the property belongs to another. For conversion to be proved, the plaintiff must show that there was an intent to take the personal property and to use it as one’s own.
14. Black’s Law Dictionary, 9th Edition, defines conversion as appropriating the property of another to one’s own benefit or to the benefit of another. There is no doubt that the car belonged to the appellant. The search, which produced an exhibit, says as much. The respondent conceded that that was the case and did, in fact, surrender the motor vehicle to the authorities upon being notified. The Respondent had possession of the motor vehicle for 8 years, during which she used it exclusively and purchased insurance for it, while denying the appellant any use or benefit of it.
15. In the case of Peter Ndungu Ngae v Ann Waithera Ndungu & 2 others [2014]eKLR, the Court cited with approval what the authors of Halsbury’s Laws of England stated in the 4th Edition, at pages 355, paragraph 548, to wit, that:
“To constitute the first form of conversion, there must be a positive wrongful act of dealing with the goods in a manner inconsistent with the owner’s rights and an intention in doing so to deny the owner’s rights or to assert a right inconsistent with them. This inconsistency is the gist of the action. There need not be any knowledge on the part of the person sued that the goods belonged to someone else; nor need there be any positive intention to challenge the true owner’s rights. Liability in conversion is strict, and fraud or other dishonesty is not a necessary ingredient in the action.”
16. I am satisfied that the respondent did not have a title to the car. She did not acquire a good title to the motor vehicle from the purchaser, as it was evidently obtained by Boaz Ochieng Onyango unlawfully. I am in agreement with the counsel for the appellant that under Section 23(1) of the Sale of Goods Act and the principle of “nemo dat quod non habet”, the respondent could not have had a better title than the one who allegedly sold it to her, and that the defect in title remains regardless of how many times the car changed hands. In my view, the frequent transfers in 2013/2014 bespeak a fraudulent intent to defeat the true owner's claim.
17. I have perused the judgment. I note that the learned magistrate erred to the extent that he appears not to have fully analyzed the evidence nor to have considered the parties' submissions. In the circumstances, I am of the view that his decision cannot stand and must be set aside.
18. What orders should the Court issue? The appellant sought special damages of Kes. 99,700 and Kes. 5,000 (for repair charges, loss assessors' fees), and general damages for conversion and costs of the suit.
19. The appellant was required to specifically plead special damages and to prove them. In my view, this burden was met insofar as the appellant showed that the repair charge of Kes. 99,700 was paid, and the loss assessor's fee was Kes. 5,000.
20. On general damages for conversion, I am guided by the decision of the Court in the case of Patrick Muturi v Kenindia Assurance Company Ltd [1993] KEHC 169 (KLR), where it was held that:
“It was also stated by the former Court of Appeal for Eastern Africa, consisting of Sir Charles Griffin, CJ (Uganda), Pickering, CJ (Zanzibar), and Thomas, J (Kenya), in 1930, in the Kenyan case of Abdalla Jaffer Thawer v Archibald Clark [1929-30] 12 K L R 22, that in actions for conversions, the general rule is that the damages are at least the value of the thing converted. Special damage over and above the value of the goods is recoverable in the same action if laid in the plaint and proved at the hearing of the suit. So soon as the defendant removes the article by taking it away from the plaintiff a liability for the value of the article, and for any special damage arising directly out of the deprivation suffered by the plaintiff, is incurred by the defendant. That liability cannot be avoided by a return of the article, but a restitution can be set up and proved by the defendant in mitigation of the damages claimed: abid. The rule is similar in detinue. In all these cases, a plaintiff who has been deprived of his chattel is ordinarily entitled to its full value, together with any special loss he may have suffered as the result of the unlawful detention or conversion or destruction or loss.”
21. The appellant lost his motor vehicle for 9 years. He was unable to use it for the said period. I agree that he ought to be compensated for it. The fact compensation is the market value of the motor vehicle. Since it was allegedly sold for Kes. 470,000, it is my view that the said sum is indeed the market value of the property. In the circumstances, I find and hold that the market value of the motor vehicle is Kes. 470,000, and that the said figure is the fair compensation for damage suffered by the appellant.
22. Having succeeded, and noting that under Section 27 of the Civil Procedure Act, costs ordinarily follow the event, I award the appellant costs of the appeal and in the Court below.
23. The upshot of the foregoing is that:
i. I set aside the judgment of the Court below and substitute it with an order allowing the statement of claim in the following terms:
a. General damages of Kes. 470,000/- for conversion;
b. Repair charges of Kes. 99,700/-;
c. Special damages of Kes. 5,000/-;
ii. I award the appellant the costs of the appeal and of the Court below, to be agreed or taxed.
24. It is so ordered.
Dated and signed in Nairobi, this 28th day of April 2026.