DANIEL KARANI GICHUKI AND JOSEPH KARAMU NDICHU VS MOSES ORWA OGOLA

(Being an Appeal from the judgment and decree of Senior Resident Magistrate and Adjudicator Hon. B. J. Ofisi dated 24^th day of April, 2023 at Milimani Small Claims Court SCC No. E4026 of 2022)

1. This appeal by way of a memorandum of appeal dated 22/5/2023 arises from a claim dated 16/11/2022 by the respondent (claimant in the SCC) against the appellants (respondents in the SCC) for material damage to the respondent’s motor vehicle registration number KBQ 611Y. It was alleged in the claim that on 3/1/2020 the appellants’ motor vehicle registration number KBP 518K hit the respondent’s said motor vehicle from the rear causing extensive damage to it. The respondent blamed the appellant’s for negligence and causing the accident. The respondent thereby suffered loss and damage and sought compensation in the Small Claims Court against the appellants for the damage and loss to his vehicle in the sum of KShs 244,556/=.   
2. The appellants in their joint response dated 14/2/2023 denied the respondent’s claim for compensation. They instead laid blame for the accident upon the respondent claiming that he was negligent in his manner of driving his said motor vehicle.
3. The claim before the SCC proceeded by way of hearing where each party made available witnesses who adopted their respective witness statements, testified and were cross-examined.
4. The respondent Moses Orwa Ogola testified as CW 2 and called CW 1, Josephat Kamau Ndui, a motor vehicle assessor with Primedots Assessors who assessed motor vehicle registration number KBQ 611Y and prepared a report which he produced in evidence. The respondent said that he was the driver of his motor vehicle at the material time and that the appellants’ motor vehicle registration number KBP 518K, Pick-up rammed into his vehicle from the rear. There were traffic police officers nearby who immediately attended the scene. They directed them to report the accident at Embakasi police station which they did. 
5. The 1^st appellant Daniel Karani Gichuki and the 2^nd appellant Joseph Karamu Ndichu testified for the appellants as RW 1 and RW 2 respectively. RW 1 said he was the owner of motor vehicle registration number KBP 518K. He did not witness the accident.
6. RW 2 said that he was the driver of the vehicle. He said the driver of motor vehicle KBQ 611Y overtook him at high speed and entered his lane and slowed down prompting his motor vehicle to hit his from the rear.
7. Upon analysing the evidence, the learned Adjudicator found that the respondent had proved his claim. She found the appellant’s wholly liable for the accident, with the 1^st appellant being vicariously liable for the negligence of his driver or agent, the 2^nd appellant. She entered judgment for the respondent in the sum of KShs 244,556/= against the appellants with costs to the respondent.
8. Dissatisfied with the learned Adjudicator’s decision the appellants now appeal to this court setting out some six grounds of appeal in their memorandum and praying that the judgment of the learned Adjudicator be set aside.
9. The appeal was canvassed by way of written submissions filed by learned counsels for both parties.
10. I have considered the grounds of appeal raised in the memorandum of appeal, the record of appeal and the submissions by learned counsels for the parties.
11. The six grounds of appeal set out in the memorandum are basically one issue being raised in so many paragraphs, that the learned trial Adjudicator erred in finding the case proved against the appellants against the weight of the evidence tendered at the hearing.
12. An appeal to this court from the SCC is on points of law only as provided for under section 38 of the SCC Act. 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.
13. In all the six paragraphs of the grounds of appeal laid out in the memorandum, the learned counsel for the appellants keeps adverting to the honourable magistrate and adjudicator having  ”erred in law and in fact.” Learned counsel would do well to refer to and be guided by the Court of Appeal’s observation in the case of Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR that:

“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.”

1. Therefore, on any issue raised in the appeal that touches on facts, this court is not bound to upset the findings of the trial court.
2. The Court of Appeal in M’Riungu v. Republic [1983] KLR 455, considering how to proceed to determine an appeal on points of law only, 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”.

1.   The appellate 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 as has been held in numerous decisions. (see for instance Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others [2014] eKLR.
2. The main issue of law raised by the appellant’s through the submissions of their learned counsel which is on the weight of evidence relied upon by the learned Adjudicator is that the learned Adjudicator relied on the police abstract in which the 2^nd appellant was blamed for the accident yet the investigating officer did not attend court to testify. Indeed, the learned Adjudicator referred to the police abstract dated 4/1/2020 and said that it indicated that motor vehicle registration number KBP 518K was blamed for the accident. She did not refer to any other evidence as supporting the respondent’s case. That means she based her findings on liability on what was written in the police abstract. Can the learned Adjudicator’s findings be found to be wanting so as to lead this court to find that there was no evidence at all upon which the finding of liability against the appellants could be found 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?
3. The first port of call is to understand the working of the SCC. In my understanding, a small claim is a claim not just limited in the name or the monetary value or jurisdiction of the court but also small or limited in terms of the timelines for the hearing and determination, the procedures of lodging and prosecuting the claim, in terms of evidence taking and evaluation and in terms of the brevity of the court’s decision. In other jurisdictions, it is even small in terms of the legal background and training of the persons who preside over it. In Kenya the presiding judicial officer is referred to as an Adjudicator and not a magistrate with full legal training but applying the law to determine disputes in a simple way almost informally but expeditiously as per the SCC Act. For instance, section 34(2) 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.
4. So, when a party subjects its claim before this court, let it be prepared to abide by the constitutive elements of the SCC including the fact that appeals to the High Court are only on issues of law and the appeal is final. The case before a SCC is a claim and not a suit. That is why the SCC Act exempts the court proceedings from the rigid application of the standards of evidence under the Law of Evidence Act (Cap. 80) Laws of Kenya and permits the court to include as evidence any material that it deems credible or trustworthy. The procedures are also flexible and the court is not bound by the Civil Procedure Rules (2010).
5. I note that the respondent testified in the case and adopted his witness statement dated 16/11/2022 as his evidence-in-chief. In the statement he said he was the one driving his vehicle registration number KBQ 611Y when it was suddenly rammed into from the rear by motor vehicle registration number KBP 51K occasioning serious damage to it. For the appellants the 1^st appellant testified in the case and said he was informed of the accident by the driver and his employee, the 2^nd appellant. The 2^nd appellant also testified and gave his evidence.
6. Having listened to the evidence from both parties, where each driver was blaming the other, the trial court chose to go further to look at the police abstract which was part of the evidence relied upon by the respondent. When the same was produced in evidence, the appellants had no objection to it. This is in spite of the fact that they were all along insisting that the 2^nd appellant was not on the wrong in the accident. In spite of that contestation, both drivers agreed in their respective testimonies that a police officer attended the scene immediately and so was able to assess how the accident occurred and that is what is reflected in the police abstract. This is contrary to the submission by learned counsel for the appellants that no police officer attended the scene. I cannot understand how learned counsel arrived at that submission.
7. The appellant’s own witness, DW 2 said that the police officer who attended the scene directed the drivers that since there was not much damage to the vehicles, each party to bear the cost of repairing his vehicle. The fact that he did not prefer criminal charges against cannot mean that the police officer did not ascribe blame upon either of the drivers. I would take it to mean he was foregoing taking any criminal action against either of them perhaps in his discretion but not because none was to blame. He later prepared a police abstract in which he ascribed blame upon the driver he found culpable, the 2^nd appellant. That blame was not tested in a criminal court through cross-examination but it was tendered in a SCC claim.
8. Under Section 32 of the Act provides that the strict evidentiary rules applicable in other courts are not wholly applied in the Small Claims Court. It further, provides 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. It would appear to me that the standard of proof in a SCC is as per the determination of the Adjudicator who is seized of the matter properly applying her mind to the facts and law of the case having followed the rules of natural justice as provided under the Act and not the normal civil procedure standard of on a balance of probabilities.
9. It must be remembered that The Small Claims Court Act exempts 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.
10. The High Court will ordinarily not be seised of the facts presented before the SCC, since the record of the court consists of summaries of the facts of the issues in dispute in respect of those claims as determined and recorded by the SCC during the hearing of the claims (section 22(b) of the Act). Seeing that the record consists only of summaries it follows that an appellate cannot proceed with the case by way of a rehearing and re-evaluation of evidence as is the norm in normal civil matters.
11. Under section 41 of the SCC Act, the trial court has jurisdiction to review its orders or awards where there was an error of law on the face of the record. Perhaps, parties would be advised to better take this route before making their way to the High Court on appeal because when the matter lands on the High Court desk on appeal, it will be determined on the narrow parameters of issue of law as circumscribed by the SCCA.
12. Therefore, the learned Adjudicator in this case cannot be faulted for relying upon the police abstract which was made available to her as evidence. There was evidence supporting that of CW 2, the driver of the other vehicle. The learned Adjudicator was satisfied according to her evaluation of the evidence that it was sufficient to prove the case. I find no reason to find otherwise as her conclusion was reached based on evidence available to her and not from no evidence at all.
13. Consequently, I find the appeal has no merit and it fails. The judgment and order of the learned trial Adjudicator is affirmed in its entirety.
14. The respondent shall also get the costs of this appeal assessed at KShs 30,000/=.
15. Delivered, dated and signed at Milimani on the Virtual Platform, Teams this 18^th day of July 2024.

In the presence of:

No appearance for the Appellant.

Ondieki (Ms) for the Respondent.

Eutropia Court Assistant.