(Being an appeal from the judgement of Hon.A. G Njuguna in Nairobi SCCC E6349 of 2023)
This appeal arises from the judgement of the learned adjudicator delivered on the 2 nd August 2024, where she dismissed the appellant’s suit against the respondent.
The claim was originated by a statement of claim filed on the 8 th December 2023 where the appellant sought special damages of Ksh 302,150 for material damages, costs of the suit and interest. The claim arose out of an accident that allegedly occurred on 10 th December 2020 along Uhuru Highway near Bunyala Round about.
The appellant’s case before the adjudicator was that the respondent’s motor vehicle registration number KCC 207L was negligently driven as to cause it to hit the appellants motor vehicle registration number KBY 220K causing the latter extensive damage. The appellant’s insurer, AIG Kenya insurance Co. Ltd catered for the costs of repairs and it instituted the suit to recover its outlay under the doctrine of subrogation.
The record show that when the matter came up for mention on the 13.06.2024 before the adjudicator, counsel holding brief for Mr. Simiyu, for the claimant (now appellant) sought for judgement in default against the respondent who had failed to enter appearance or file response within the period allowed in law. Interlocutory judgement was entered against the respondents and directions issued that the matter to proceed by way of submissions. The matter was slated for judgement on 2 nd August 2024.It is not clear from the record when the respondent got leave to file response or how they participated by filing a response, a statement and submissions.
It is the foregoing background that forms the crux of the ground of appeal which is that the learned adjudicator erred in fact and law in dismissing the appellant’s suit against the respondent inspite of the default judgement against the latter.
The appeal has been disposed of by way of written submissions. The appellant filed submissions while there was no compliance from the respondent. The appellant’s counsel submitted that the learned adjudicator erred by dismissing the suit against the respondent after default judgement was entered in favour of the appellant. That there was no written request to set aside the default judgement as prescribed in rule 11(4) of the Small Claims Rules. The appellant further submitted that the respondent’s documents on record were irregularly considered thus depriving the appellants of the right to a fair trial as enshrined in Article 50 of the constitution.
The appellant submitted that the learned adjudicator erred in fact and law by failing to appreciate that the respondent admitted that his motor vehicle rammed into the appellant’s motor vehicle.
This being a first appeal, I am reminded of my primary role as a first appellate court namely, to re-evaluate, re- assess and re-analyze the extracts of the record and then determine whether conclusions reached by the learned adjudicator are to stand and give reasons either way. See the case of Kenya Ports Authority –V- Kustan (K) Ltd 2009 2 EA 212 wherein, the court of appeal held inter alia that;
‘’On a first appeal from the high court, the court of appeal should reconsider the evidence, evaluate it itself and draw its own conclusions. Though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect.
Secondly that the responsibility of the court is to rate the evidence on record and not to introduce extraneous matters not dealt with by the parties in evidence.’’
Turning to the merits of this appeal, the main issue is whether the learned adjudicator erred in law in dismissing the appellant’s claim in light of the record.
Section 27 of the Small Claims Court Act provides that if the respondent fails to respond to the claim within the prescribed period, the court may either on its own motion or at the claimant’s application enter judgement for the claimant and order the relief sought in the statement of claim.
Rule 11(4) of the Small Claims Court Rules provide;
‘’The court may set aside a default judgment and any consequential orders given under this rule on the written request of any party that is aggrieved by the decree or order if the court is satisfied, on evidence given by the applicants and on hearing the other parties to the proceeding that; -
(a)The default was inadvertent.
(b)The applicant has a valid defence with a probability of success or
(c)There are sufficient grounds to warrant setting aside the default judgement, decree and order.’’
From the record before the adjudicator, judgement was entered in favour of the appellant against the respondent in default of appearance. That judgement has never been set aside either on the court’s own motion or on any application. It was therefore not open for the learned adjudicator to consider response to the claim and witness statements which appeared to have been ‘sneaked’ into the record without the appellant (claimant’s) knowledge before first having the judgement set aside.
What the learned adjudicator should have done is to bring this to the attention of the parties and have the judgement set aside so that both parties are heard on merit.
In any event, the appellant’s claim was a liquidated claim and once judgement was entered in default, there was no need for formal proof.
However even if the court were to consider the written statement of the respondent and his submissions, there was no dispute that an accident occurred on the 10.12.2020 involving amongst others the appellant’s and the respondent’s motor vehicles. In his statement, the respondent admitted that his vehicle rammed in to the appellant’s car from the rear, even after trying to brake. He blamed this on unnamed motor vehicles who were not made parties to this suit. The appellant’s complaint that the respondent failed to keep sufficient distance from its motor vehicle was clearly vindicated by the admission on part of the respondent. That failure to keep reasonable distance made it difficult for the respondent to avoid ramming into the appellant’s motor vehicle.
The learned adjudicator erred in law in failing to analyse the evidence by the parties and thereby reached a wrong conclusion. The adjudicator erroneously faulted the appellant for the failure to produce a police investigation report, sketch map or a police abstract. These were unnecessary in light of the admission by the respondent. Police Abstract only shows that an accident was reported to the police. Where the occurrence of the accident is admitted, as was the case herein, it is not a mandatory requirement as proof of the occurrence of same accident, particularly in a matter filed in the Small Claim’s Court where rules of evidence are a bit relaxed.
It is my finding that had the learned adjudicator analysed the record and evidence placed before her, she would have certainly come to the conclusion that the appellant had proved his claim on a balance of probabilities. The adjudicator’s judgement was procedurally flawed and inconsistent with the record.
In the result and for the reasons given in my assessment, I allow the appeal, set aside the judgement of the adjudicator dated 2 nd August 2024 and substitute it with the following orders;
- Judgement be and is hereby entered in favour of the appellant against the respondent for Ksh. 302,150 with interest at court rates from date of filing suit till payment and costs of the suit in the lower court and in this appeal.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8 th JULY 2026.
D.O. ONYANGO
JUDGE
2
This appeal arises from the judgement of the learned adjudicator delivered on the 2 nd August 2024, where she dismissed the appellant’s suit against the respondent.
The claim was originated by a statement of claim filed on the 8 th December 2023 where the appellant sought special damages of Ksh 302,150 for material damages, costs of the suit and interest. The claim arose out of an accident that allegedly occurred on 10 th December 2020 along Uhuru Highway near Bunyala Round about.
The appellant’s case before the adjudicator was that the respondent’s motor vehicle registration number KCC 207L was negligently driven as to cause it to hit the appellants motor vehicle registration number KBY 220K causing the latter extensive damage. The appellant’s insurer, AIG Kenya insurance Co. Ltd catered for the costs of repairs and it instituted the suit to recover its outlay under the doctrine of subrogation.
The record show that when the matter came up for mention on the 13.06.2024 before the adjudicator, counsel holding brief for Mr. Simiyu, for the claimant (now appellant) sought for judgement in default against the respondent who had failed to enter appearance or file response within the period allowed in law. Interlocutory judgement was entered against the respondents and directions issued that the matter to proceed by way of submissions. The matter was slated for judgement on 2 nd August 2024.It is not clear from the record when the respondent got leave to file response or how they participated by filing a response, a statement and submissions.
It is the foregoing background that forms the crux of the ground of appeal which is that the learned adjudicator erred in fact and law in dismissing the appellant’s suit against the respondent inspite of the default judgement against the latter.
The appeal has been disposed of by way of written submissions. The appellant filed submissions while there was no compliance from the respondent. The appellant’s counsel submitted that the learned adjudicator erred by dismissing the suit against the respondent after default judgement was entered in favour of the appellant. That there was no written request to set aside the default judgement as prescribed in rule 11(4) of the Small Claims Rules. The appellant further submitted that the respondent’s documents on record were irregularly considered thus depriving the appellants of the right to a fair trial as enshrined in Article 50 of the constitution.
The appellant submitted that the learned adjudicator erred in fact and law by failing to appreciate that the respondent admitted that his motor vehicle rammed into the appellant’s motor vehicle.
This being a first appeal, I am reminded of my primary role as a first appellate court namely, to re-evaluate, re- assess and re-analyze the extracts of the record and then determine whether conclusions reached by the learned adjudicator are to stand and give reasons either way. See the case of Kenya Ports Authority –V- Kustan (K) Ltd 2009 2 EA 212 wherein, the court of appeal held inter alia that;
‘’On a first appeal from the high court, the court of appeal should reconsider the evidence, evaluate it itself and draw its own conclusions. Though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect.
Secondly that the responsibility of the court is to rate the evidence on record and not to introduce extraneous matters not dealt with by the parties in evidence.’’
Turning to the merits of this appeal, the main issue is whether the learned adjudicator erred in law in dismissing the appellant’s claim in light of the record.
Section 27 of the Small Claims Court Act provides that if the respondent fails to respond to the claim within the prescribed period, the court may either on its own motion or at the claimant’s application enter judgement for the claimant and order the relief sought in the statement of claim.
Rule 11(4) of the Small Claims Court Rules provide;
‘’The court may set aside a default judgment and any consequential orders given under this rule on the written request of any party that is aggrieved by the decree or order if the court is satisfied, on evidence given by the applicants and on hearing the other parties to the proceeding that; -
(a)The default was inadvertent.
(b)The applicant has a valid defence with a probability of success or
(c)There are sufficient grounds to warrant setting aside the default judgement, decree and order.’’
From the record before the adjudicator, judgement was entered in favour of the appellant against the respondent in default of appearance. That judgement has never been set aside either on the court’s own motion or on any application. It was therefore not open for the learned adjudicator to consider response to the claim and witness statements which appeared to have been ‘sneaked’ into the record without the appellant (claimant’s) knowledge before first having the judgement set aside.
What the learned adjudicator should have done is to bring this to the attention of the parties and have the judgement set aside so that both parties are heard on merit.
In any event, the appellant’s claim was a liquidated claim and once judgement was entered in default, there was no need for formal proof.
However even if the court were to consider the written statement of the respondent and his submissions, there was no dispute that an accident occurred on the 10.12.2020 involving amongst others the appellant’s and the respondent’s motor vehicles. In his statement, the respondent admitted that his vehicle rammed in to the appellant’s car from the rear, even after trying to brake. He blamed this on unnamed motor vehicles who were not made parties to this suit. The appellant’s complaint that the respondent failed to keep sufficient distance from its motor vehicle was clearly vindicated by the admission on part of the respondent. That failure to keep reasonable distance made it difficult for the respondent to avoid ramming into the appellant’s motor vehicle.
The learned adjudicator erred in law in failing to analyse the evidence by the parties and thereby reached a wrong conclusion. The adjudicator erroneously faulted the appellant for the failure to produce a police investigation report, sketch map or a police abstract. These were unnecessary in light of the admission by the respondent. Police Abstract only shows that an accident was reported to the police. Where the occurrence of the accident is admitted, as was the case herein, it is not a mandatory requirement as proof of the occurrence of same accident, particularly in a matter filed in the Small Claim’s Court where rules of evidence are a bit relaxed.
It is my finding that had the learned adjudicator analysed the record and evidence placed before her, she would have certainly come to the conclusion that the appellant had proved his claim on a balance of probabilities. The adjudicator’s judgement was procedurally flawed and inconsistent with the record.
In the result and for the reasons given in my assessment, I allow the appeal, set aside the judgement of the adjudicator dated 2 nd August 2024 and substitute it with the following orders;
- Judgement be and is hereby entered in favour of the appellant against the respondent for Ksh. 302,150 with interest at court rates from date of filing suit till payment and costs of the suit in the lower court and in this appeal.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8 th JULY 2026.
D.O. ONYANGO
JUDGE
2