BEATRICE MUTHONI MURUGAMI................................................................APPELLANT
VERSUS
THOMAS NDEGWA KAMAU....................................................................1ST RESPONDENT
CHARLES MUTUKU NGUNGA................................................................2ND RESPONDENT
(Being an Appeal against the judgment and decree of Hon. J. B. Ofisi Adjudicator, delivered on 23rd June 2023 in Nairobi SCCC Claim No. E886 of 2023)
JUDGMENT
1. This appeal through the memorandum dated 21st July 2023 arises from a judgment of the Small Claims Court (SCC) delivered on 23rd June 2023. The claim at the SCC dated 24th February 2023 by the appellant herein Beatrice Muthoni Murangami (claimant in the SCC) against the respondents Thomas Ndegwa Kamau and Charles Mutuku Ngunga (respondents in the SCC) was for compensation for personal injuries sustained by the appellant following a road traffic accident.
2. The appeal is on assessment of damages only; the grounds being that:
a. The learned trial magistrate erred in law in failing to appreciate that the appellant’s medical records indicating her injuries were uncontroverted.
b. The learned trial magistrate erred in law in failing to appreciate that the dental injury was proved based on medical records in court.
c. The learned trial magistrate erred in law in failing to give reasons why she did not believe the claimant’s evidence on the fractured tooth.
d. The learned trial magistrate erred in law in failing to give reasons why she did not believe the dentist who attended to the appellant.
e. The learned trial magistrate erred in law when she failed to award general damages for pain and suffering following the fractured upper central left incisor.
f. The learned trial magistrate erred in law when she failed to award special damages for the fractured upper central left incisor.
3. The appellant therefore prays to this court that part of the judgment of the SCC dated 23rd May (should be June) 2023 stating that the dental injury had not been proved to the required standard be reversed and the same be varied to award general damages and special damages on account of the fractured tooth in addition to the soft tissue injuries and that the respondent bear the costs of the appeal.
4. The case before the SCC was that, the appellant alleged in the statement of claim that on 11th November 2022, along Ngong road, she was lawfully travelling as a fare paying passenger in motor vehicle registration number KDB 997M when it rammed into another motor vehicle as a result of which the appellant was injured. She blamed the respondent’s driver for negligence in causing the accident.
5. The appellant pleaded that she sustained the following injuries:
a. Fractured upper central left incisor.
b. Lower back tenderness.
c. Elbow lateral bruise and swelling hematoma.
d. Shoulder posterior bruises.
e. Leg mid sheen bruise and swelling.
f. Knee medially bruise and swelling.
6. At the hearing, the appellant called two witnesses to support her case, CW 1, Dr. Oliver Wala, a dentist and CW 2, Dr. (Prof) Joshua Kyatesa Kayima a consultant physician/nephrologist.
7. CW 1, Dr. Oliver Wala, is a dentist who gave evidence and produced a medical report dated 14th November 2022. In the report he indicated that he saw the appellant on 14th November 2022 for check-up and exam. On examination she had bruises and lacerations on the lower lip and fractured upper central left incisor. The doctor recommended taking an x-ray and then doing a Root Canal treatment on 21 followed by a crown. He then gave an invoice with the following items: consultation KShs 2,000/=; X-ray large KShs 6,000/=, Root Canal Treatment, KShs 30,000/= and Crown Zirconia (per tooth) KShs 45,000/=. Total KShs 83,000/=.
8. In cross-examination. Dr. Wala said that he was not aware that the appellant was examined by another doctor.
9. The second witness, CW 2, was Dr. (Prof) Joshua Kyatesa Kayima a consultant physician/nephrologist who produced a medical report dated 21st November 2022. The report indicated that the appellant was evaluated on 14th November 2022. Examination showed the following injuries:
a. Elbow lateral aspect – bruise and swelling, hematoma.
b. Leg – mid sheen, bruise and swelling.
c. Knee – medially bruise and swelling.
d. Shoulder posterior bruise.
e. Lower back tenderness but x-ray no fracture.
10. In cross-examination Prof. Kayima said that injury on the teeth was already looked at by another doctor and the appellant’s complaints were not related to the dental injury.
11. The appellant gave evidence in court as CW 3 and adopted her witness statement dated 24th February 2023 as her evidence in chief. She also produced several documents filed together with her statement of claim as exhibits. Among them was a P3 form dated 22nd November 2022 signed by a Dr. Kamau.
12. In cross-examination the appellant said that Dr. Wala did for her root canal treatment and crowning. She said that the amount indicated in the invoice was an actual expense and not a future expense.
13. The respondents closed their case without calling any evidence at the hearing.
14. In her judgment, the learned Adjudicator found the 2nd respondent wholly liable in negligence for the accident and the 1st respondent vicariously liable.
15. On assessment of damages, in her analysis of the evidence the learned Adjudicator stated as follows with respect to the injuries sustained by the appellant:
“I have considered the injuries sustained by the Claimant as indicated in the medical documents adduced in evidence.
The Claimant has only proven the injuries sustained as a result of the accident which were soft tissue in nature.
The dental injury has (sic) not proven to the required standard. Consequently, the court declines to award the claimant the future medical expenses pleaded.”
16. The learned Adjudicator then proceeded to assess the general damages for pain, suffering and loss of amenities for the injuries proved at KShs 120,000/=.
17. Being dissatisfied with the decision that the injury to the tooth had nor been proved, the appellant filed the present appeal. The appeal was canvassed by way of written submissions filed by learned counsels for both parties. The same are considered in the analysis that follows.
18. Learned counsel for the appellant summarized the grounds of appeal into three. He argued grounds 3 and 4 together, similarly for grounds 1 and 2 and finally grounds 5 and 6.
19. The respondents on their part argued grounds 1, 2, 5 and 6 together then grounds 3 and 4 together.
20. I have considered the grounds of appeal, the case before the SCC and the submissions by learned counsels for the parties. The issue for determination is whether or not there was an error of law on the part of the learned Adjudicator in finding that the appellant’s case had not proved injury to the tooth as claimed by the appellant.
21. In spite of the appellant consolidating the grounds into three, it is apparent from the grounds of appeal and the particulars of injuries set out in the claim as sustained by the appellant, that the appellant’s main issue with the judgment of the SCC was failure by the learned Adjudicator (not magistrate) to award damages for the alleged fractured upper central left incisor.
22. As a preliminary issue, it is important for this court to point out that it is useful for parties appearing before the SCC to bear in mind from the outset that the SCC is presided over by an Adjudicator and not a Magistrate as referred to in the grounds of appeal and submissions herein. It might appear as a non-issue but it bears great significance on understanding and appreciating the operations of the SCC and the spirit behind its establishment. Otherwise it gets meshed up with the operations of the magistrates’ court and there it loses meaning as a different court.
23. In the Kenyan context, an Adjudicator is indeed a Magistrate, with full legal training and an advocate of the High Court of Kenya. However, while presiding over the SCC she takes a separate oath of office and therefore removes the robes of a magistrate and wears the ordinary garment of an Adjudicator who in my thinking, in the spirit of the SCCA, should come down to the level of the ordinary person on the streets in adjudication and determination of claims. The reasons are that the SCC is designed to be simple, that is, without the strictures of formal procedure and strict evidentiary rules, fast and accessible. These reasons as to why the operations of the SCC must be distinguished from those of the magistrate’s court will come out clearer in the analysis and evaluation of the evidence that follows.
24. First, under section 38 of the SCC Act an appeal to this court from the SCC is on points of law only unlike section 65 of the Civil Procedure Act which provides that an appeal to the High Court is on a question of law or fact. So, the first issue for this court to consider is whether the grounds of appeal raised by the appellant are on points of law only. The submissions by both learned counsels take the form of submissions before the magistrates’ court, urging this court to analyze and reassess the evidence on record and reach its own findings. That is misplaced. From the provisions of the Act, it follows that this court cannot proceed with the case by way of a rehearing and re-evaluation of evidence as is the norm in civil matters before the magistrates’ courts as provided for under the Civil Procedure Act and Rules which has limited application in proceedings before the SCC.
25. The Court of Appel in the case of Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR) stated thus regarding appeals on points of law:
“Those points in an appeal of the kind before us, being from an election court’s decision, are further circumscribed by Section 85A of the Elections Act which limits appeals to the Court of Appeal to matters of law only. It is therefore quite strange and improper that each of the seventeen grounds, without exception, commences with a standard expression “the judge erred in fact and law” or “the learned Judge erred in law and in fact.” Clearly the drafters of the memorandum did not have the legal provision in active contemplation. Had they done so, they would have found that by invoking factual errors, they were inviting jurisdictional objections to their entire appeal.”
26. That decision was in respect to an election petition but the reasoning applies with equal force before this court on appeals from the SCC since appeals are on points of law only. It follows from this decision that an appeal to this court from the SCC being on points of law only as provided for under section 38 of the SCC Act this court is not permitted to interfere with the findings of fact by the trial court unless the decision is bad in law and cannot be supported by the evidence tendered. On that issue the Court of Appeal in M’Riungu v. Republic [1983] KLR 455, held thus:
“where a right of appeal is confined to question of law, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of fact and law and it should not interfere with the decision of the trial court or the first appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law”.
27. This court may however interfere with the findings of the trial court where it is demonstrated that there was no evidence at all upon which such findings were based or that the evidence relied upon was of such a nature that no reasonable tribunal, properly addressing its mind on it, could have made such findings (see for instance Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others [2014] eKLR).
28. The first port of call in this appeal is to understand the working of the SCC as provided for under the Small Claims Court Act (Cap. 10A) Laws of Kenya (SCC Act). For me, a claim under the Act is a small not just limited in the name or the monetary value or jurisdiction of the court but also small or limited in terms of the procedures of lodging and prosecuting it, in terms of evidence required to prove it and the flexible evaluation of the same by the court, the limited timelines for the hearing and determination, and in terms of the brevity of the court’s decision on the claim. The disputes are therefore meant to be determined in a simple way almost informally and expeditiously as per the SCC Act. So, when a party subjects its claim before this court, let it be prepared to abide by the constitutive elements of this court which guide hearing and disposal of claims.
29. These elements are for instance as outlined under section 3(3) of the Act where it is provided that the Court shall adopt such procedures as the Court deems appropriate to ensure inter alia the timely disposal of all proceedings before the Court using the least expensive method and simplicity of procedure. The court is, therefore, under section 17 of the Act granted the discretion to control its own procedure in conformity with the Act in the determination of claims before it. In the exercise of that control, the Court is obliged to have regard to the principles of natural justice.
30. Moreover, under Section 32 of the Act the strict evidentiary rules applicable in other courts are not wholly applied in the Small Claims Court. It is further provided that the Court may admit as evidence any oral or written testimony, record, or other material even though the same is not admissible as evidence in any other Court under the law of evidence (Emphasis and underlying supplied).
31. Considering these elements of the SCC it would appear to me that the manner of proof of a claim in a SCC is that of a reasonable person as per the appreciation of the material tendered to the Adjudicator who is seized of the matter properly applying her mind to the law and facts of the case having observed the rules of natural justice as provided for under the Act and not being held captive by the strictures of the magistrates’ court processes as laid down in the Civil Procedure Act (Cap. 21) Laws of Kenya and the Rules made thereunder and the Law of Evidence Act (Cap. 80) Laws of Kenya.
32. This is because the SCC Act exempts the court proceedings from the rigid application of the standards of evidence applicable in other court proceedings and permits the court to include as evidence any material that it deems credible or trustworthy. It is upon the Adjudicator to determine the material to rely upon. To this end, the method and style of the SCC has been referred to as “unceremonious” by Bruce Zucker and Monica Her in their seminal paper “The People's Court Examined: A Legal and Empirical Analysis of the Small Claims Court System.” It is a court bereft of procedural technicalities. Thus, the case before a SCC is a claim and not a suit.
33. Considering the provisions of the SCCA, it is apparent that the Adjudicator has a wide discretion on which material to rely upon in arriving at his or her decision. In doing so, she does not even need to offer any analysis or reasons because that is not provided for in the SCC Act. That in my thinking is why section 34(2) of the Act provides that judgment given in determination of any claim shall be delivered on the same day and in any event, not later than three (3) days from the date of the hearing. There is no court that can render a considered decision the same day of the hearing where tens of cases are concluded before that court as in the Small Claims Court. That is why in my thinking the spirit behind the SCC is one of negotiation and settlement and hearings become an exception and even then on very narrow issues that can be disposed of in no more than three days as provided for under the Act. The Adjudicator’s duty is to ensure that rules of natural justice are adhered to as provided for under section 17 of the Act. In doing so the court will ensure that each party has an equal opportunity to present its case and there is fairness of process as provided for under section 3(b) and (c) of the Act.
34. I start with grounds 3 and 4 where the appellant’s contention is that the learned Adjudicator failed to give reasons for her decision. Learned counsel submits that the learned Adjudicator failed to adhere to the requirements of Order 22 Rule 4 CPR to give reasons for her decision.
35. There is no requirement for the learned Adjudicator to prepare a lengthy decision under the SCC Act as is the case under the Civil Procedure Rules. Rule 23(4) of the SCC Rules provides that at the end of the hearing, the Court shall prepare a written record of its decision in final determination of the claims before it and (a) pronounce its decision in accordance with section 34(2) of the Act; or (b) send a copy of its written decision to the parties. This is unlike Order 21 Rule 4 of the Civil Procedure Rules which provides that “Judgement in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision.”
36. Even then, the submission that the learned Adjudicator failed to give reasons for her decision are not correct. The learned Adjudicator indeed considered the issue of the injury to the tooth and found that the injury was not proved. The issue then is whether that finding was in line with the evidence adduced at the hearing such that the common person on the street considering the decision can say that it was fair in the circumstances. If the learned Adjudicator failed to take into account a material part of the evidence tendered, then that becomes an issue of law and is subject to be considered by this court.
37. The issue then is, was the injury sustained by the appellant to her tooth supported by evidence?
38. It is correct as submitted by learned counsel for the respondent that the appellant did not plead the particulars of injuries in her statement of claim. However, she captured them in her witness statement filed together with the claim and among them was the fractured upper central left incisor. Considering the flexibility of the workings of the SCC, I am satisfied that the issue was properly brought to the attention of the respondent and no prejudice was occasioned by the failure to plead the same.
39. It is correct as submitted by learned counsel for the appellant that the fact that Dr. (Prof.) Kayima had not captured the injury to the mouth and tooth in his medical report was telling. However, the doctor explained in his testimony that it was because the same had been captured elsewhere by another doctor. Considering that Dr. Wala is a specialist in dentistry, I think it was proper that Dr. Kayima deferred to him in that respect.
40. The respondent submits that Dr. Wala did not produce the X-ray report that he had ordered for and therefore no proof that indeed the tooth had suffered a fracture. However, Dr. Wala indicated in the report that indeed the tooth was fractured. He further testified to the same in court and that evidence was not challenged even through cross-examination. I find that there was evidence from Dr. Wala which supported that of the appellant that she sustained a fractured upper central left incisor.
41. The respondent also submits that the appellant’s evidence of injury to the tooth was controverted through the respondent’s response to the claim. I find that submission as not being serious. A pleading is not evidence. If not evidence is called to support a pleading it remains an allegation without much value to the case. In the case of Edward Mariga through Stanley Mobisa Mariga v Nathaniel David Schulter & another [1997] KECA 336 (KLR), the Court of Appeal when considering the issue of a defendant’s failure to call evidence at the hearing observed that apart from filing the statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the plaintiff and that of his witness remained uncontroverted and the statement in the defence that the respondent (plaintiff) had contributed to the accident therefore remained an allegation.
42. From the foregoing evidence, I find that the learned Adjudicator failed to take into account material evidence on the injury to the tooth. The learned Adjudicator’s finding that the injury to the tooth must be and is hereby set aside and substituted with a finding that the appellant proved that she sustained a fractured upper central left incisor, among other injuries.
43. That error obviously led to the learned Adjudicator assessing lower general damages for pain, suffering and loss of amenities and failure to assess damages for future medical expenses.
44. The appellant had proposed a sum of KShs 500,000/= general damages for pain, suffering and loss of amenities. In this appeal, the appellant submits that the general damages for pain, suffering and loss of amenities should be enhanced by KShs 200,000/= to take into account the injury to the tooth. She has cited the following cases:
a) Washington Mukunya Karanja & another v Margaret Wambui Maina [2020] KEHC 3900 (KLR) where the respondent sustained the following injuries (a). Swelling of upper part of mouth, (b). Alveolar fracture of both incisor teeth (c). Soft tissue injuries on right leg (d). Sustained superficial wound. The High Court on appeal sustained the award of KShs 300,000/= made by the lower court as general damages for pain, suffering and loss of amenities.
b) Ng’ang’a John & another v David Ogot Agola [2021] KEHC 804 (KLR) where the respondent sustained injuries to the mouth and trunk, namely 2 cracked/loose upper molars and blunt injury to the left side of the chest. The High Court on appeal reduced the trial court’s award of general damages from KShs 600,000/= to KShs 350,000/=.
45. The respondents on their part, before the SCC, submitted that an award of KShs 250,000/= would be sufficient compensation for the appellant as general damages for pain, suffering and loss of amenities. The respondent relied on the Washington Mukunya Karanja case above and Justine Nyamweya Ochoki & another v Prudence Anna Mwambu [2020] KEHC 878 (KLR) where the respondent suffered the following injuries:
(a). Loss of upper front incisor tooth.
(b). Deep cut on the chin
(c). Cut on the lips
(d). loosing of the upper teeth.
(e). Blunt object
(f). Injury to the right forearm.
(g). Loss of consciousness.
The High Court on appeal reduced the lower court award of general damages for pain, suffering and loss of amenities from KShs. 650,000/= to KShs. 300, 000/=.
46. All the cases cited by the parties are relevant and, though slightly more serious as involving injury to more than one tooth, but I find that they bear comparable injuries to those sustained by the appellant herein.
47. I therefore agree with the respondent as submitted before the lower court that the sum of KShs 250,000/= is sufficient compensation as general damages for pain, suffering and loss of amenities for the appellant’s injuries and the same is awarded.
48. The respondent while submitting before the SCC had no problem with the appellant being awarded KShs 83,000/= as pleaded in the statement of claim for future medical expenses. However, in the appeal, the respondent now submits that the same could not be awarded as the appellant did not produce receipts to support the expenditure since she said that indeed she had been attended to and made the payments.
49. In suits before other courts, perhaps the appellant would have been required to amend her plaint in order to capture the fact that she had already expended the money. But in a SCC the rules of procedure and evidence are flexible. What is required is for the court to satisfy itself that the evidence is reasonable. Considering that the court is enjoined to expeditiously determine the claim within a fixed timeline, I agree with the submission by learned counsel for the appellant that there was no necessity to amend the claim to capture the fact that the appellant had since expended the money on the treatment.
50. Again, the respondent is reminded that this being a Small claim, the SCC has discretion to admit any evidence it finds credible even if the same is not admissible before any other court. In this case, the appellant gave evidence that she had spent that much on treatment and produced the invoice which was supported by the doctor who attended to her. An invoice is ordinarily not admissible before other courts to prove that a payment has been made. However, in this case, coupled with the evidence of the attending doctor, it was admissible as proof that the expense had been incurred even if pending payment. I find that the claim for future medical expenses was reasonably proved.
51. I find that the learned Adjudicator once again failed to take into account a material evidence and so erred in her finding by not awarding that sum to the appellant. The same is awarded herein.
52. There was no appeal on special damages and the same remain as awarded.
53. Consequently, I find the appeal has merit and it is allowed. The order of the learned Adjudicator on assessment of damages is set aside and substituted with an order awarding to the appellant general damages for pain, suffering and loss of amenities of KShs 250,000/= and damages for future medical expenses of KShs 83,000/= making a total of KShs 333,000/= together with the special damages awarded by the SCC.
54. The appellant shall also get the costs of this appeal assessed at KShs 30,000/=.
55. Delivered, dated and signed on the Virtual Platform, Teams this 9th day of April 2026.
ANDAYI W. FRANCIS
JUDGE
In the presence of:
N/A for the Appellant.
Awino for the Respondent.
Ummu: Court Assistant.
VERSUS
THOMAS NDEGWA KAMAU....................................................................1ST RESPONDENT
CHARLES MUTUKU NGUNGA................................................................2ND RESPONDENT
(Being an Appeal against the judgment and decree of Hon. J. B. Ofisi Adjudicator, delivered on 23rd June 2023 in Nairobi SCCC Claim No. E886 of 2023)
JUDGMENT
1. This appeal through the memorandum dated 21st July 2023 arises from a judgment of the Small Claims Court (SCC) delivered on 23rd June 2023. The claim at the SCC dated 24th February 2023 by the appellant herein Beatrice Muthoni Murangami (claimant in the SCC) against the respondents Thomas Ndegwa Kamau and Charles Mutuku Ngunga (respondents in the SCC) was for compensation for personal injuries sustained by the appellant following a road traffic accident.
2. The appeal is on assessment of damages only; the grounds being that:
a. The learned trial magistrate erred in law in failing to appreciate that the appellant’s medical records indicating her injuries were uncontroverted.
b. The learned trial magistrate erred in law in failing to appreciate that the dental injury was proved based on medical records in court.
c. The learned trial magistrate erred in law in failing to give reasons why she did not believe the claimant’s evidence on the fractured tooth.
d. The learned trial magistrate erred in law in failing to give reasons why she did not believe the dentist who attended to the appellant.
e. The learned trial magistrate erred in law when she failed to award general damages for pain and suffering following the fractured upper central left incisor.
f. The learned trial magistrate erred in law when she failed to award special damages for the fractured upper central left incisor.
3. The appellant therefore prays to this court that part of the judgment of the SCC dated 23rd May (should be June) 2023 stating that the dental injury had not been proved to the required standard be reversed and the same be varied to award general damages and special damages on account of the fractured tooth in addition to the soft tissue injuries and that the respondent bear the costs of the appeal.
4. The case before the SCC was that, the appellant alleged in the statement of claim that on 11th November 2022, along Ngong road, she was lawfully travelling as a fare paying passenger in motor vehicle registration number KDB 997M when it rammed into another motor vehicle as a result of which the appellant was injured. She blamed the respondent’s driver for negligence in causing the accident.
5. The appellant pleaded that she sustained the following injuries:
a. Fractured upper central left incisor.
b. Lower back tenderness.
c. Elbow lateral bruise and swelling hematoma.
d. Shoulder posterior bruises.
e. Leg mid sheen bruise and swelling.
f. Knee medially bruise and swelling.
6. At the hearing, the appellant called two witnesses to support her case, CW 1, Dr. Oliver Wala, a dentist and CW 2, Dr. (Prof) Joshua Kyatesa Kayima a consultant physician/nephrologist.
7. CW 1, Dr. Oliver Wala, is a dentist who gave evidence and produced a medical report dated 14th November 2022. In the report he indicated that he saw the appellant on 14th November 2022 for check-up and exam. On examination she had bruises and lacerations on the lower lip and fractured upper central left incisor. The doctor recommended taking an x-ray and then doing a Root Canal treatment on 21 followed by a crown. He then gave an invoice with the following items: consultation KShs 2,000/=; X-ray large KShs 6,000/=, Root Canal Treatment, KShs 30,000/= and Crown Zirconia (per tooth) KShs 45,000/=. Total KShs 83,000/=.
8. In cross-examination. Dr. Wala said that he was not aware that the appellant was examined by another doctor.
9. The second witness, CW 2, was Dr. (Prof) Joshua Kyatesa Kayima a consultant physician/nephrologist who produced a medical report dated 21st November 2022. The report indicated that the appellant was evaluated on 14th November 2022. Examination showed the following injuries:
a. Elbow lateral aspect – bruise and swelling, hematoma.
b. Leg – mid sheen, bruise and swelling.
c. Knee – medially bruise and swelling.
d. Shoulder posterior bruise.
e. Lower back tenderness but x-ray no fracture.
10. In cross-examination Prof. Kayima said that injury on the teeth was already looked at by another doctor and the appellant’s complaints were not related to the dental injury.
11. The appellant gave evidence in court as CW 3 and adopted her witness statement dated 24th February 2023 as her evidence in chief. She also produced several documents filed together with her statement of claim as exhibits. Among them was a P3 form dated 22nd November 2022 signed by a Dr. Kamau.
12. In cross-examination the appellant said that Dr. Wala did for her root canal treatment and crowning. She said that the amount indicated in the invoice was an actual expense and not a future expense.
13. The respondents closed their case without calling any evidence at the hearing.
14. In her judgment, the learned Adjudicator found the 2nd respondent wholly liable in negligence for the accident and the 1st respondent vicariously liable.
15. On assessment of damages, in her analysis of the evidence the learned Adjudicator stated as follows with respect to the injuries sustained by the appellant:
“I have considered the injuries sustained by the Claimant as indicated in the medical documents adduced in evidence.
The Claimant has only proven the injuries sustained as a result of the accident which were soft tissue in nature.
The dental injury has (sic) not proven to the required standard. Consequently, the court declines to award the claimant the future medical expenses pleaded.”
16. The learned Adjudicator then proceeded to assess the general damages for pain, suffering and loss of amenities for the injuries proved at KShs 120,000/=.
17. Being dissatisfied with the decision that the injury to the tooth had nor been proved, the appellant filed the present appeal. The appeal was canvassed by way of written submissions filed by learned counsels for both parties. The same are considered in the analysis that follows.
18. Learned counsel for the appellant summarized the grounds of appeal into three. He argued grounds 3 and 4 together, similarly for grounds 1 and 2 and finally grounds 5 and 6.
19. The respondents on their part argued grounds 1, 2, 5 and 6 together then grounds 3 and 4 together.
20. I have considered the grounds of appeal, the case before the SCC and the submissions by learned counsels for the parties. The issue for determination is whether or not there was an error of law on the part of the learned Adjudicator in finding that the appellant’s case had not proved injury to the tooth as claimed by the appellant.
21. In spite of the appellant consolidating the grounds into three, it is apparent from the grounds of appeal and the particulars of injuries set out in the claim as sustained by the appellant, that the appellant’s main issue with the judgment of the SCC was failure by the learned Adjudicator (not magistrate) to award damages for the alleged fractured upper central left incisor.
22. As a preliminary issue, it is important for this court to point out that it is useful for parties appearing before the SCC to bear in mind from the outset that the SCC is presided over by an Adjudicator and not a Magistrate as referred to in the grounds of appeal and submissions herein. It might appear as a non-issue but it bears great significance on understanding and appreciating the operations of the SCC and the spirit behind its establishment. Otherwise it gets meshed up with the operations of the magistrates’ court and there it loses meaning as a different court.
23. In the Kenyan context, an Adjudicator is indeed a Magistrate, with full legal training and an advocate of the High Court of Kenya. However, while presiding over the SCC she takes a separate oath of office and therefore removes the robes of a magistrate and wears the ordinary garment of an Adjudicator who in my thinking, in the spirit of the SCCA, should come down to the level of the ordinary person on the streets in adjudication and determination of claims. The reasons are that the SCC is designed to be simple, that is, without the strictures of formal procedure and strict evidentiary rules, fast and accessible. These reasons as to why the operations of the SCC must be distinguished from those of the magistrate’s court will come out clearer in the analysis and evaluation of the evidence that follows.
24. First, under section 38 of the SCC Act an appeal to this court from the SCC is on points of law only unlike section 65 of the Civil Procedure Act which provides that an appeal to the High Court is on a question of law or fact. So, the first issue for this court to consider is whether the grounds of appeal raised by the appellant are on points of law only. The submissions by both learned counsels take the form of submissions before the magistrates’ court, urging this court to analyze and reassess the evidence on record and reach its own findings. That is misplaced. From the provisions of the Act, it follows that this court cannot proceed with the case by way of a rehearing and re-evaluation of evidence as is the norm in civil matters before the magistrates’ courts as provided for under the Civil Procedure Act and Rules which has limited application in proceedings before the SCC.
25. The Court of Appel in the case of Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR) stated thus regarding appeals on points of law:
“Those points in an appeal of the kind before us, being from an election court’s decision, are further circumscribed by Section 85A of the Elections Act which limits appeals to the Court of Appeal to matters of law only. It is therefore quite strange and improper that each of the seventeen grounds, without exception, commences with a standard expression “the judge erred in fact and law” or “the learned Judge erred in law and in fact.” Clearly the drafters of the memorandum did not have the legal provision in active contemplation. Had they done so, they would have found that by invoking factual errors, they were inviting jurisdictional objections to their entire appeal.”
26. That decision was in respect to an election petition but the reasoning applies with equal force before this court on appeals from the SCC since appeals are on points of law only. It follows from this decision that an appeal to this court from the SCC being on points of law only as provided for under section 38 of the SCC Act this court is not permitted to interfere with the findings of fact by the trial court unless the decision is bad in law and cannot be supported by the evidence tendered. On that issue the Court of Appeal in M’Riungu v. Republic [1983] KLR 455, held thus:
“where a right of appeal is confined to question of law, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of fact and law and it should not interfere with the decision of the trial court or the first appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law”.
27. This court may however interfere with the findings of the trial court where it is demonstrated that there was no evidence at all upon which such findings were based or that the evidence relied upon was of such a nature that no reasonable tribunal, properly addressing its mind on it, could have made such findings (see for instance Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others [2014] eKLR).
28. The first port of call in this appeal is to understand the working of the SCC as provided for under the Small Claims Court Act (Cap. 10A) Laws of Kenya (SCC Act). For me, a claim under the Act is a small not just limited in the name or the monetary value or jurisdiction of the court but also small or limited in terms of the procedures of lodging and prosecuting it, in terms of evidence required to prove it and the flexible evaluation of the same by the court, the limited timelines for the hearing and determination, and in terms of the brevity of the court’s decision on the claim. The disputes are therefore meant to be determined in a simple way almost informally and expeditiously as per the SCC Act. So, when a party subjects its claim before this court, let it be prepared to abide by the constitutive elements of this court which guide hearing and disposal of claims.
29. These elements are for instance as outlined under section 3(3) of the Act where it is provided that the Court shall adopt such procedures as the Court deems appropriate to ensure inter alia the timely disposal of all proceedings before the Court using the least expensive method and simplicity of procedure. The court is, therefore, under section 17 of the Act granted the discretion to control its own procedure in conformity with the Act in the determination of claims before it. In the exercise of that control, the Court is obliged to have regard to the principles of natural justice.
30. Moreover, under Section 32 of the Act the strict evidentiary rules applicable in other courts are not wholly applied in the Small Claims Court. It is further provided that the Court may admit as evidence any oral or written testimony, record, or other material even though the same is not admissible as evidence in any other Court under the law of evidence (Emphasis and underlying supplied).
31. Considering these elements of the SCC it would appear to me that the manner of proof of a claim in a SCC is that of a reasonable person as per the appreciation of the material tendered to the Adjudicator who is seized of the matter properly applying her mind to the law and facts of the case having observed the rules of natural justice as provided for under the Act and not being held captive by the strictures of the magistrates’ court processes as laid down in the Civil Procedure Act (Cap. 21) Laws of Kenya and the Rules made thereunder and the Law of Evidence Act (Cap. 80) Laws of Kenya.
32. This is because the SCC Act exempts the court proceedings from the rigid application of the standards of evidence applicable in other court proceedings and permits the court to include as evidence any material that it deems credible or trustworthy. It is upon the Adjudicator to determine the material to rely upon. To this end, the method and style of the SCC has been referred to as “unceremonious” by Bruce Zucker and Monica Her in their seminal paper “The People's Court Examined: A Legal and Empirical Analysis of the Small Claims Court System.” It is a court bereft of procedural technicalities. Thus, the case before a SCC is a claim and not a suit.
33. Considering the provisions of the SCCA, it is apparent that the Adjudicator has a wide discretion on which material to rely upon in arriving at his or her decision. In doing so, she does not even need to offer any analysis or reasons because that is not provided for in the SCC Act. That in my thinking is why section 34(2) of the Act provides that judgment given in determination of any claim shall be delivered on the same day and in any event, not later than three (3) days from the date of the hearing. There is no court that can render a considered decision the same day of the hearing where tens of cases are concluded before that court as in the Small Claims Court. That is why in my thinking the spirit behind the SCC is one of negotiation and settlement and hearings become an exception and even then on very narrow issues that can be disposed of in no more than three days as provided for under the Act. The Adjudicator’s duty is to ensure that rules of natural justice are adhered to as provided for under section 17 of the Act. In doing so the court will ensure that each party has an equal opportunity to present its case and there is fairness of process as provided for under section 3(b) and (c) of the Act.
34. I start with grounds 3 and 4 where the appellant’s contention is that the learned Adjudicator failed to give reasons for her decision. Learned counsel submits that the learned Adjudicator failed to adhere to the requirements of Order 22 Rule 4 CPR to give reasons for her decision.
35. There is no requirement for the learned Adjudicator to prepare a lengthy decision under the SCC Act as is the case under the Civil Procedure Rules. Rule 23(4) of the SCC Rules provides that at the end of the hearing, the Court shall prepare a written record of its decision in final determination of the claims before it and (a) pronounce its decision in accordance with section 34(2) of the Act; or (b) send a copy of its written decision to the parties. This is unlike Order 21 Rule 4 of the Civil Procedure Rules which provides that “Judgement in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision.”
36. Even then, the submission that the learned Adjudicator failed to give reasons for her decision are not correct. The learned Adjudicator indeed considered the issue of the injury to the tooth and found that the injury was not proved. The issue then is whether that finding was in line with the evidence adduced at the hearing such that the common person on the street considering the decision can say that it was fair in the circumstances. If the learned Adjudicator failed to take into account a material part of the evidence tendered, then that becomes an issue of law and is subject to be considered by this court.
37. The issue then is, was the injury sustained by the appellant to her tooth supported by evidence?
38. It is correct as submitted by learned counsel for the respondent that the appellant did not plead the particulars of injuries in her statement of claim. However, she captured them in her witness statement filed together with the claim and among them was the fractured upper central left incisor. Considering the flexibility of the workings of the SCC, I am satisfied that the issue was properly brought to the attention of the respondent and no prejudice was occasioned by the failure to plead the same.
39. It is correct as submitted by learned counsel for the appellant that the fact that Dr. (Prof.) Kayima had not captured the injury to the mouth and tooth in his medical report was telling. However, the doctor explained in his testimony that it was because the same had been captured elsewhere by another doctor. Considering that Dr. Wala is a specialist in dentistry, I think it was proper that Dr. Kayima deferred to him in that respect.
40. The respondent submits that Dr. Wala did not produce the X-ray report that he had ordered for and therefore no proof that indeed the tooth had suffered a fracture. However, Dr. Wala indicated in the report that indeed the tooth was fractured. He further testified to the same in court and that evidence was not challenged even through cross-examination. I find that there was evidence from Dr. Wala which supported that of the appellant that she sustained a fractured upper central left incisor.
41. The respondent also submits that the appellant’s evidence of injury to the tooth was controverted through the respondent’s response to the claim. I find that submission as not being serious. A pleading is not evidence. If not evidence is called to support a pleading it remains an allegation without much value to the case. In the case of Edward Mariga through Stanley Mobisa Mariga v Nathaniel David Schulter & another [1997] KECA 336 (KLR), the Court of Appeal when considering the issue of a defendant’s failure to call evidence at the hearing observed that apart from filing the statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the plaintiff and that of his witness remained uncontroverted and the statement in the defence that the respondent (plaintiff) had contributed to the accident therefore remained an allegation.
42. From the foregoing evidence, I find that the learned Adjudicator failed to take into account material evidence on the injury to the tooth. The learned Adjudicator’s finding that the injury to the tooth must be and is hereby set aside and substituted with a finding that the appellant proved that she sustained a fractured upper central left incisor, among other injuries.
43. That error obviously led to the learned Adjudicator assessing lower general damages for pain, suffering and loss of amenities and failure to assess damages for future medical expenses.
44. The appellant had proposed a sum of KShs 500,000/= general damages for pain, suffering and loss of amenities. In this appeal, the appellant submits that the general damages for pain, suffering and loss of amenities should be enhanced by KShs 200,000/= to take into account the injury to the tooth. She has cited the following cases:
a) Washington Mukunya Karanja & another v Margaret Wambui Maina [2020] KEHC 3900 (KLR) where the respondent sustained the following injuries (a). Swelling of upper part of mouth, (b). Alveolar fracture of both incisor teeth (c). Soft tissue injuries on right leg (d). Sustained superficial wound. The High Court on appeal sustained the award of KShs 300,000/= made by the lower court as general damages for pain, suffering and loss of amenities.
b) Ng’ang’a John & another v David Ogot Agola [2021] KEHC 804 (KLR) where the respondent sustained injuries to the mouth and trunk, namely 2 cracked/loose upper molars and blunt injury to the left side of the chest. The High Court on appeal reduced the trial court’s award of general damages from KShs 600,000/= to KShs 350,000/=.
45. The respondents on their part, before the SCC, submitted that an award of KShs 250,000/= would be sufficient compensation for the appellant as general damages for pain, suffering and loss of amenities. The respondent relied on the Washington Mukunya Karanja case above and Justine Nyamweya Ochoki & another v Prudence Anna Mwambu [2020] KEHC 878 (KLR) where the respondent suffered the following injuries:
(a). Loss of upper front incisor tooth.
(b). Deep cut on the chin
(c). Cut on the lips
(d). loosing of the upper teeth.
(e). Blunt object
(f). Injury to the right forearm.
(g). Loss of consciousness.
The High Court on appeal reduced the lower court award of general damages for pain, suffering and loss of amenities from KShs. 650,000/= to KShs. 300, 000/=.
46. All the cases cited by the parties are relevant and, though slightly more serious as involving injury to more than one tooth, but I find that they bear comparable injuries to those sustained by the appellant herein.
47. I therefore agree with the respondent as submitted before the lower court that the sum of KShs 250,000/= is sufficient compensation as general damages for pain, suffering and loss of amenities for the appellant’s injuries and the same is awarded.
48. The respondent while submitting before the SCC had no problem with the appellant being awarded KShs 83,000/= as pleaded in the statement of claim for future medical expenses. However, in the appeal, the respondent now submits that the same could not be awarded as the appellant did not produce receipts to support the expenditure since she said that indeed she had been attended to and made the payments.
49. In suits before other courts, perhaps the appellant would have been required to amend her plaint in order to capture the fact that she had already expended the money. But in a SCC the rules of procedure and evidence are flexible. What is required is for the court to satisfy itself that the evidence is reasonable. Considering that the court is enjoined to expeditiously determine the claim within a fixed timeline, I agree with the submission by learned counsel for the appellant that there was no necessity to amend the claim to capture the fact that the appellant had since expended the money on the treatment.
50. Again, the respondent is reminded that this being a Small claim, the SCC has discretion to admit any evidence it finds credible even if the same is not admissible before any other court. In this case, the appellant gave evidence that she had spent that much on treatment and produced the invoice which was supported by the doctor who attended to her. An invoice is ordinarily not admissible before other courts to prove that a payment has been made. However, in this case, coupled with the evidence of the attending doctor, it was admissible as proof that the expense had been incurred even if pending payment. I find that the claim for future medical expenses was reasonably proved.
51. I find that the learned Adjudicator once again failed to take into account a material evidence and so erred in her finding by not awarding that sum to the appellant. The same is awarded herein.
52. There was no appeal on special damages and the same remain as awarded.
53. Consequently, I find the appeal has merit and it is allowed. The order of the learned Adjudicator on assessment of damages is set aside and substituted with an order awarding to the appellant general damages for pain, suffering and loss of amenities of KShs 250,000/= and damages for future medical expenses of KShs 83,000/= making a total of KShs 333,000/= together with the special damages awarded by the SCC.
54. The appellant shall also get the costs of this appeal assessed at KShs 30,000/=.
55. Delivered, dated and signed on the Virtual Platform, Teams this 9th day of April 2026.
ANDAYI W. FRANCIS
JUDGE
In the presence of:
N/A for the Appellant.
Awino for the Respondent.
Ummu: Court Assistant.