Background:
1. This Appeal emanates from the judgement delivered on 6th November 2024 dismissing the Appellant’s case at the small claim court.
2. The Appellant filed a claim at the small claim court, the nature of the claim is for loss and damage incurred in repairing her car registration No. KDL 446B.Background is that that she entered into a hire purchase agreement with the 1st Respondent for purchase of Toyota Hilux KDL 446B herein referred to as the “motor vehicle’’. The terms are explained in details in the claim at the small claims court.
3. As an additional term the Appellant was also required to pay Kshs.215,000/= for the 1st Respondent to take out a comprehensive insurance. The Appellant averred that on 7th November 2023 the motor vehicle was involved in an accident and the Claimant approached the 3rd Respondent herein for repairs as the policy.
4. The Appellant learnt from the 2nd Respondent that no such comprehensive insurance policy had been taken by the 1st Respondent. The 1st Respondent carried out the repairs but did not do quality repairs to the Appellant’s satisfaction.
5. The Appellant avers that she took it upon herself to do the work at a cost of Kshs.123,980/= . the Appellant faults the 1st Respondent for breaching the terms of the agreement and the delay in repairing the motor vehicle has inconvenienced her and caused here to suffer loss.
6. The Appellant pleaded that she has already paid Kshs.3,861,000/= and the remaining balance is only Kshs.438,000/=. The Appellant sought special damages of Kshs.123,980/=, damages for breach of contract and exemption from paying penalty for the months to pay where failure to pay was caused by the 1st Respondent. She further sought costs of the suit and interests.
7. The 1st Respondent agreed that there was an agreement but denied undertaking the repairs and maintained that the same were done by the 3rd Respondent. They pleaded that the Appellant did not show in any way the repairs done were substandard.
8. Vide a response to the Claim dated 2nd April 2024 the 2nd Respondent averred that the Appellant lodged the accident claim through Zakim Insurance Agency and it was discovered that they had no records of the subject motor vehicle.
9. They stated that there is no valid policy on the said motor vehicle since it was invalidated for non-payment of premium. A letter on page 90 of the record of appeal demonstrated that the policy was taken out in January 2023 and certificate issued by 3rd Respondent herein but the same was not declared for debiting neither was premium paid. They rejected the claim.
10. On 23rd November 2023 the 2nd Respondent cancelled the certificate for the said motor vehicle to allow the Appellant get a proper cover placement. On 24th November 2023 the 2nd Respondent wrote to Simba Garage to release the said motor vehicle to the Appellant herein.
11. A third-party notice dated 2nd April 2024 was filed as shown on the Record of Appeal. The third party filed a Response denying owing any money. They pleaded that the motor vehicle was repaired at the cost and expense of the third party and the motor vehicle was satisfactorily was collected by the Appellant upon repair.
12. Vide the witness statement by the 3rd Respondent herein, they admitted receiving premium for insurance of the Appellant but they inadvertently failed to declare policy which was a genuine mistake.
13. The 3rd Respondent avers that it agreed to make good its mistake by bearing the cost of repairs. They plead that the repairs were done at a reputable garage and then Appellant collected the motor vehicle thereby confirming her satisfaction of the repairs done.
14. The 3rd Respondent argued that some of the alleged repairs were done before the Appellant collected the said motor vehicle the delivery note attached indicates 15th December 2023.
The Appeal.
15. The Appellants herein aggrieved by the decision preferred an appeal to this Court seeking to set aside the judgement of the small claims court, the amended grounds of appeal are as follows:
(i) The Magistrate erred in law and in fact by basing her decision on a matter por issue not raised by any of the parties.
(ii) The Magistrate erred in law and in fact by making a determination on a matter in respect to which parties had not been heard.
(iii) The Magistrate erred in law and in determining the case on the issues that did not emanate from the pleadings by the parties.
(iv) The Magistrate erred in law and in fact by raising a new issue that had not been raised during the trial.
(v) The Magistrate erred in law and in fact in finding that the Appellant’s claim was not meritious.
(vi) The Magistrate erred in law and in fact in disregarding the appellant’s pleadings, evidence and submissions.
(vii) The Magistrate erred in law and in fact in taking into account irrelevant facts this arriving at an erroneous conclusion.
(viii) The Magistrate erred in law and in fact in dismissing the appellant’s case.
16. The Appellant prays that the Appeal herein set aside the Judgment of the small claim court and judgement be entered as prayed in the plaint in the lower court or as this court may consider fair and just. The Appellant also prays for costs.
The Submissions:
17. Parties highlighted their submission on 19th May 2026. Brief summary from the filed written submissions are as follows:
18. The Appellant vide their submissions dated 15th September 2025 prayed that the Appeal be allowed, judgement of the Small Claims Court be set aside, Judgement be entered in their favour of the Appellant as prayed in the statement of claim and costs of this Appeal and the lower court proceedings.
19. The Appellant in summary faulted the Trial Court for descending into the arena of conflict by determining an issue that had not been pleaded or raised by any party thereby occasioning miscarriage of justice. The Appellant further faulted the Trial Court for misapplying Rule 5 of the Small Claim Rules in a manner that contradicted section 32 of the Small Claims Court Act by allowing subsidiary rule to override the express provisions of the parent Act.
20. 1st Respondent vide their submissions dated 16th October 2025 submitted that the suit was properly dismissed. He further submitted that the learned adjudicator did not deal with an issue which was not a pleaded issue but was merely giving effect to the general principle on proof of special damages with specific emphasis on proof before the small claim court. They submitted that there was no error when the adjudicator made findings on the stoppage of time within the contract period. They concluded that the findings of the Trial Court were supported in law hence sound.
21. The 2nd Respondent vide submissions dated 2nd February 2026 submitted that the Small Claim Court does not eliminate the need for evidence nor does it prohibit the Court from assessing whether the evidence is credible and trustworthy.
22. They further submitted that the Trial Court rightly that Zakim Insurance Agency acted as the agent of the insurer and since the premiums collected had not remitted to the 2nd Respondent the appeal against them out to fail. They urged the Court to affirm the decision of the Trial Court.
23. The 3rd Respondent faulted the Appellant for not complying with Section 38(1) of the Small Claim Court Act. The 3rd Respondent further that the Trial Court did not err by considering Rule 5 of the Small Claim Rules.
24. The 3rd Respondent submitted that they disputed the authenticity of some of the purchases on different grounds including that some of the purchases were made when the motor vehicle was still pending repairs by the 3rd Respondent. They further submitted that the Appellant ought to have produced itemized receipt issued in acknowledgment of money paid to a licensed mechanic.
25. The 3rd Respondent submitted that on the issue of the Trial Court making a fundament error to suo moto introduce and determine provision of Rule 5 of the Small Claim Court Rules, the same is misconceived as its Courts are bound by the Law and ought to apply the law not merely base decisions on parties’ arguments. The closed by submitting that the Appellant has not discharged her burden of proof hence the suit should be dismissed with costs.
Analysis of the issue for determination.
26. From the above analysis, the main issue for determination is whether the Lower erred in its findings. I have studied the record of appeal together with the written submissions and the highlights by the Appellant and the 3rd Respondent.
27. The facts are undisputed. The Appellant paid insurance premium as per the sale agreement and received the insurance sticker which appeared valid until the accident occurred. The Insurance Company denied receiving any premium and declined to undertake repairs vide letter dated 22nd November 2023.
28. The 2nd Respondent vide a letter dated 24th November 2023 instructed Simba garage to release the motor vehicle to the Appellant here in, this is evidenced on page 95 of record of appeal.
29. Looking at the proceedings, contrary to the assertion that the Appellant signed a satisfactory note, no notice of satisfaction was produced to show that the car was repaired to the Appellant’s satisfaction. Gerison Timothy Okoth who testified for the third party stated on cross examination at page 233 of the record confirmed that no satisfaction report was filed.
30. The accident occurred on 7th November 2023 and the repairs were finalized by the 3rd Respondent on 15th December 2023 with back and forth on the validity of the insurance which the Appellant had duly paid for.
31. The Appellant produced receipts on folio 41 to 49 of the record of appeal including a towing invoice. The Respondents submitted that the some of the receipts availed by the Appellant were not authentic as the purchases were made when the motor vehicle was still being repaired by the 3rd Respondent. They did not flag out the said receipts but the court took the liberty to analyze the receipts produced. One the invoices on page 43 is dated 15th December 2023, the same day when the motor vehicle was released by the 3rd Respondent as evidenced on the dispatch date on page 126 of the Record of Appeal. From the ETR receipt attached on page 44 it appears the same was paid for on 16th December 2023 at 18.38.34hours.
32. The Delivery note although dated 16th December 2023 indicates that the dispatch date for the motor vehicle was on 15th December 2023 and the method of delivery was ‘self-drive’. Therefore, this does not create any contradiction as alleged by the Respondents but it appears the Appellant immediately commenced the repairs upon picking the motor vehicle.
33. The Trial Court was of the view that the damages herein ought to have been ascertained before they were undertaken to demonstrate the necessity of such repairs. The Court relied on Rule 5 of the Small Claim Courts 2019 which requires that an assessment report or itemized receipt form a licensed mechanic to be attached evidencing the extent of damages or repairs required.
34. The Trial Court found that the Appellant’s case had not met the standards in para 33 above, hence found it unsafe to award the amounts prayed for.
35. This Court is faced with the issue on what would have been the right procedure to applied by the Appellant to ensure that the repairs were done to her satisfaction once she got her motor vehicle.
36. There is no evidence before Court that Appellant raised that issue with the 1st Respondent or the 3rd Respondent, she did not document any substandard work undertaken. She opted to undertake the repairs and seek to recover the same from the Respondents and seek a remedy form the small claim court.
37. The Appellant having opted to undertake repairs on her own and pursue the Respondents at the Trial Court, she was bound by the Rules of the Court and to support her claim she was required to avail evidence as provided for under Rule 5 of the small claims Act, 2019.
38. Further Section 108 of the Evidence Act required her to prove to the Court’s satisfaction that she indeed the work undertaken by the 3rd Respondent was not to her satisfaction and the production of receipts and invoices is not enough. My view is that the Trial Court correctly applied the law to the facts and as against the tendered evidence. The Trial Court did not err in basing her decision on existing Law. In any event the Small Claim is bound by the cited Law.
39. I acknowledge the fact that the Appellant herein had genuine grievances towards the 1st Respondent whom she has a hire purchase agreement with, however, the manner in which she chose to commence and pursue the claim occasioned a difficulty to her. The Appellant was still required to prove her case on a balance of probability which I am of the view, she failed to.
40. I am inclined to agree with the decision of the Trial Court to disallow the Claim. The Appeal therefore fails and is dismissed with no order to costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 3rd day of July 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Mboya Learned Counsel for the Appellant.
Cheruiyot Learned Counsel for the 1st Respondent.
Idris Learned Counsel for the 3rd Respondent.
Michael - Court Assistant.
1. This Appeal emanates from the judgement delivered on 6th November 2024 dismissing the Appellant’s case at the small claim court.
2. The Appellant filed a claim at the small claim court, the nature of the claim is for loss and damage incurred in repairing her car registration No. KDL 446B.Background is that that she entered into a hire purchase agreement with the 1st Respondent for purchase of Toyota Hilux KDL 446B herein referred to as the “motor vehicle’’. The terms are explained in details in the claim at the small claims court.
3. As an additional term the Appellant was also required to pay Kshs.215,000/= for the 1st Respondent to take out a comprehensive insurance. The Appellant averred that on 7th November 2023 the motor vehicle was involved in an accident and the Claimant approached the 3rd Respondent herein for repairs as the policy.
4. The Appellant learnt from the 2nd Respondent that no such comprehensive insurance policy had been taken by the 1st Respondent. The 1st Respondent carried out the repairs but did not do quality repairs to the Appellant’s satisfaction.
5. The Appellant avers that she took it upon herself to do the work at a cost of Kshs.123,980/= . the Appellant faults the 1st Respondent for breaching the terms of the agreement and the delay in repairing the motor vehicle has inconvenienced her and caused here to suffer loss.
6. The Appellant pleaded that she has already paid Kshs.3,861,000/= and the remaining balance is only Kshs.438,000/=. The Appellant sought special damages of Kshs.123,980/=, damages for breach of contract and exemption from paying penalty for the months to pay where failure to pay was caused by the 1st Respondent. She further sought costs of the suit and interests.
7. The 1st Respondent agreed that there was an agreement but denied undertaking the repairs and maintained that the same were done by the 3rd Respondent. They pleaded that the Appellant did not show in any way the repairs done were substandard.
8. Vide a response to the Claim dated 2nd April 2024 the 2nd Respondent averred that the Appellant lodged the accident claim through Zakim Insurance Agency and it was discovered that they had no records of the subject motor vehicle.
9. They stated that there is no valid policy on the said motor vehicle since it was invalidated for non-payment of premium. A letter on page 90 of the record of appeal demonstrated that the policy was taken out in January 2023 and certificate issued by 3rd Respondent herein but the same was not declared for debiting neither was premium paid. They rejected the claim.
10. On 23rd November 2023 the 2nd Respondent cancelled the certificate for the said motor vehicle to allow the Appellant get a proper cover placement. On 24th November 2023 the 2nd Respondent wrote to Simba Garage to release the said motor vehicle to the Appellant herein.
11. A third-party notice dated 2nd April 2024 was filed as shown on the Record of Appeal. The third party filed a Response denying owing any money. They pleaded that the motor vehicle was repaired at the cost and expense of the third party and the motor vehicle was satisfactorily was collected by the Appellant upon repair.
12. Vide the witness statement by the 3rd Respondent herein, they admitted receiving premium for insurance of the Appellant but they inadvertently failed to declare policy which was a genuine mistake.
13. The 3rd Respondent avers that it agreed to make good its mistake by bearing the cost of repairs. They plead that the repairs were done at a reputable garage and then Appellant collected the motor vehicle thereby confirming her satisfaction of the repairs done.
14. The 3rd Respondent argued that some of the alleged repairs were done before the Appellant collected the said motor vehicle the delivery note attached indicates 15th December 2023.
The Appeal.
15. The Appellants herein aggrieved by the decision preferred an appeal to this Court seeking to set aside the judgement of the small claims court, the amended grounds of appeal are as follows:
(i) The Magistrate erred in law and in fact by basing her decision on a matter por issue not raised by any of the parties.
(ii) The Magistrate erred in law and in fact by making a determination on a matter in respect to which parties had not been heard.
(iii) The Magistrate erred in law and in determining the case on the issues that did not emanate from the pleadings by the parties.
(iv) The Magistrate erred in law and in fact by raising a new issue that had not been raised during the trial.
(v) The Magistrate erred in law and in fact in finding that the Appellant’s claim was not meritious.
(vi) The Magistrate erred in law and in fact in disregarding the appellant’s pleadings, evidence and submissions.
(vii) The Magistrate erred in law and in fact in taking into account irrelevant facts this arriving at an erroneous conclusion.
(viii) The Magistrate erred in law and in fact in dismissing the appellant’s case.
16. The Appellant prays that the Appeal herein set aside the Judgment of the small claim court and judgement be entered as prayed in the plaint in the lower court or as this court may consider fair and just. The Appellant also prays for costs.
The Submissions:
17. Parties highlighted their submission on 19th May 2026. Brief summary from the filed written submissions are as follows:
18. The Appellant vide their submissions dated 15th September 2025 prayed that the Appeal be allowed, judgement of the Small Claims Court be set aside, Judgement be entered in their favour of the Appellant as prayed in the statement of claim and costs of this Appeal and the lower court proceedings.
19. The Appellant in summary faulted the Trial Court for descending into the arena of conflict by determining an issue that had not been pleaded or raised by any party thereby occasioning miscarriage of justice. The Appellant further faulted the Trial Court for misapplying Rule 5 of the Small Claim Rules in a manner that contradicted section 32 of the Small Claims Court Act by allowing subsidiary rule to override the express provisions of the parent Act.
20. 1st Respondent vide their submissions dated 16th October 2025 submitted that the suit was properly dismissed. He further submitted that the learned adjudicator did not deal with an issue which was not a pleaded issue but was merely giving effect to the general principle on proof of special damages with specific emphasis on proof before the small claim court. They submitted that there was no error when the adjudicator made findings on the stoppage of time within the contract period. They concluded that the findings of the Trial Court were supported in law hence sound.
21. The 2nd Respondent vide submissions dated 2nd February 2026 submitted that the Small Claim Court does not eliminate the need for evidence nor does it prohibit the Court from assessing whether the evidence is credible and trustworthy.
22. They further submitted that the Trial Court rightly that Zakim Insurance Agency acted as the agent of the insurer and since the premiums collected had not remitted to the 2nd Respondent the appeal against them out to fail. They urged the Court to affirm the decision of the Trial Court.
23. The 3rd Respondent faulted the Appellant for not complying with Section 38(1) of the Small Claim Court Act. The 3rd Respondent further that the Trial Court did not err by considering Rule 5 of the Small Claim Rules.
24. The 3rd Respondent submitted that they disputed the authenticity of some of the purchases on different grounds including that some of the purchases were made when the motor vehicle was still pending repairs by the 3rd Respondent. They further submitted that the Appellant ought to have produced itemized receipt issued in acknowledgment of money paid to a licensed mechanic.
25. The 3rd Respondent submitted that on the issue of the Trial Court making a fundament error to suo moto introduce and determine provision of Rule 5 of the Small Claim Court Rules, the same is misconceived as its Courts are bound by the Law and ought to apply the law not merely base decisions on parties’ arguments. The closed by submitting that the Appellant has not discharged her burden of proof hence the suit should be dismissed with costs.
Analysis of the issue for determination.
26. From the above analysis, the main issue for determination is whether the Lower erred in its findings. I have studied the record of appeal together with the written submissions and the highlights by the Appellant and the 3rd Respondent.
27. The facts are undisputed. The Appellant paid insurance premium as per the sale agreement and received the insurance sticker which appeared valid until the accident occurred. The Insurance Company denied receiving any premium and declined to undertake repairs vide letter dated 22nd November 2023.
28. The 2nd Respondent vide a letter dated 24th November 2023 instructed Simba garage to release the motor vehicle to the Appellant here in, this is evidenced on page 95 of record of appeal.
29. Looking at the proceedings, contrary to the assertion that the Appellant signed a satisfactory note, no notice of satisfaction was produced to show that the car was repaired to the Appellant’s satisfaction. Gerison Timothy Okoth who testified for the third party stated on cross examination at page 233 of the record confirmed that no satisfaction report was filed.
30. The accident occurred on 7th November 2023 and the repairs were finalized by the 3rd Respondent on 15th December 2023 with back and forth on the validity of the insurance which the Appellant had duly paid for.
31. The Appellant produced receipts on folio 41 to 49 of the record of appeal including a towing invoice. The Respondents submitted that the some of the receipts availed by the Appellant were not authentic as the purchases were made when the motor vehicle was still being repaired by the 3rd Respondent. They did not flag out the said receipts but the court took the liberty to analyze the receipts produced. One the invoices on page 43 is dated 15th December 2023, the same day when the motor vehicle was released by the 3rd Respondent as evidenced on the dispatch date on page 126 of the Record of Appeal. From the ETR receipt attached on page 44 it appears the same was paid for on 16th December 2023 at 18.38.34hours.
32. The Delivery note although dated 16th December 2023 indicates that the dispatch date for the motor vehicle was on 15th December 2023 and the method of delivery was ‘self-drive’. Therefore, this does not create any contradiction as alleged by the Respondents but it appears the Appellant immediately commenced the repairs upon picking the motor vehicle.
33. The Trial Court was of the view that the damages herein ought to have been ascertained before they were undertaken to demonstrate the necessity of such repairs. The Court relied on Rule 5 of the Small Claim Courts 2019 which requires that an assessment report or itemized receipt form a licensed mechanic to be attached evidencing the extent of damages or repairs required.
34. The Trial Court found that the Appellant’s case had not met the standards in para 33 above, hence found it unsafe to award the amounts prayed for.
35. This Court is faced with the issue on what would have been the right procedure to applied by the Appellant to ensure that the repairs were done to her satisfaction once she got her motor vehicle.
36. There is no evidence before Court that Appellant raised that issue with the 1st Respondent or the 3rd Respondent, she did not document any substandard work undertaken. She opted to undertake the repairs and seek to recover the same from the Respondents and seek a remedy form the small claim court.
37. The Appellant having opted to undertake repairs on her own and pursue the Respondents at the Trial Court, she was bound by the Rules of the Court and to support her claim she was required to avail evidence as provided for under Rule 5 of the small claims Act, 2019.
38. Further Section 108 of the Evidence Act required her to prove to the Court’s satisfaction that she indeed the work undertaken by the 3rd Respondent was not to her satisfaction and the production of receipts and invoices is not enough. My view is that the Trial Court correctly applied the law to the facts and as against the tendered evidence. The Trial Court did not err in basing her decision on existing Law. In any event the Small Claim is bound by the cited Law.
39. I acknowledge the fact that the Appellant herein had genuine grievances towards the 1st Respondent whom she has a hire purchase agreement with, however, the manner in which she chose to commence and pursue the claim occasioned a difficulty to her. The Appellant was still required to prove her case on a balance of probability which I am of the view, she failed to.
40. I am inclined to agree with the decision of the Trial Court to disallow the Claim. The Appeal therefore fails and is dismissed with no order to costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 3rd day of July 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Mboya Learned Counsel for the Appellant.
Cheruiyot Learned Counsel for the 1st Respondent.
Idris Learned Counsel for the 3rd Respondent.
Michael - Court Assistant.