(Being an appeal from the judgment of small claims court issued vide Milimani 5CCC No. E2561 of 2024 delivered on 28/11/24)
JUDGEMENT
This appeal arises from the 1 st and 2 nd appellants’ (claimants before the small claims court) statement of claim (as amended) on 11.6.24 seeking judgment against the 1 st and 2 nd respondents for the sum of Ksh 518,728 comprising of material damage, special damages, interest, costs and any other appropriate relief. It was alleged by the appellants that the 2 nd appellant while driving motor vehicle reg KCT 793M, the same was hit from the rear by m/v reg No. KDB 042A owned and controlled by the respondents.
The respondents filed a response dated 23.7.24 alleging that the suit was fatally defective for failure to sufficiently disclose the material particulars. The respondents also denied liability and put the appellants to strict proof of all allegations.
At the hearing, the appellants called 3 witnesses in support of their case while the respondents never adduced any evidence.
The trial court in its judgement dated 28.11.24, dismissed the 1 st and 2 nd appellants’ claim on the basis that the appellants in their amended statement of claim had failed to plead the particulars of negligence.
The appellants being dissatisfied with the judgement, filed memorandum of appeal dated 9.12.24 challenging the judgement. The grounds of appeal are as set out below:
- That the learned adjudicator erred in law and in fact in finding that the appellants did not plead particulars of negligence against the 1 st and 2 nd respondents
- That the learned adjudicator erred in law and in fact in its application of Section 24 and 32 of the Small Claims Court Act
- That the learned adjudicator erred in law and in fact in its application of the common law principle of duty of care in respect to proceedings and evidence before it
- That the learned adjudicator erred in law in failing to administer substantial justice
The appellants seek that the judgement delivered on 28.11.24 by the learned adjudicator be quashed and be replaced with one allowing the claim as presented.
The appeal was disposed of by way of written submission.
APPELLANTS’ SUBMISSION
The appellant submitted that section 3(3) of the Small Claims Court Act directs the court to apply and adopt simplified procedure in determining disputes before it.
That section 24 of the Small Claims Court Act does not specifically require for a statement of claim to itemize the particulars of negligence.
The appellants submitted that the small claims court adopted a procedure that moved away from complexities of procedure and evidence to enable ordinary citizens have an easier access and time in the courts.
The appellants submitted that it had presented sufficient evidence which was not rebutted. That the learned adjudicator ought to have found in favour of the appellants particularly as the respondents did not adduce evidence in rebuttal. The appellants cited the cases of Elrons Limited v Basil (2024) KLR and Mwangi v Wambugu (1984) KLR 453 in support of its position.
RESPONDENTS’ SUBMISSION
The respondents opposed the appeal. The respondents submitted that while small claims court is designed to be accessible and informal, the court is not a forum for speculative or ill-defined claims. That the learned adjudicator acted within the law in disallowing a claim that did not disclose a cause of action. The respondents submitted that the appellants’ statement of claim as amended on 11.6.24 was fatally defective for failure to plead negligence. That the statement of claim did not identify the specific acts or omissions allegedly committed by the respondents thus denying the latter a right to know with precision the case they were called to meet.
The respondents further submitted that the jurisdiction of the high court from small claims court is deliberately narrow and that appeals are not an opportunity to reopen the disputes. That there was no misdirection on the part of the learned adjudicator to warrant interference by this court.
DETERMINATION
From the material placed before court and the submissions, the appeal herein fails or stands on the question relating to how much weight is to be given to the omission to particularise negligence, in a case of this nature filed at the small claims court.
It would appear that opinion on the import of the omission to particularise acts or facts of negligence in a claim or plaint is divergent on the point. One school of thought is that failure to particularise negligence is not mandatory, so long as the allegation of negligence has been made in the pleadings.
In Ogwari v Hersi (2023) KEHC 20111 (KLR), Magare J. held that particularization of acts of negligence is mandatory.
On the other hand, in Wachira & Another v Attorney General & Another (2003) eKLR Ransley J (as he then was) held that, although the civil procedure sets out cases where pleadings must contain certain particulars, those cases do not include claims based on negligence.
A similar position was taken in Kenyatta National Hospital v Dorcas Odongo & Another (2021) eKLR by Ong’udi J (as she then was). The learned judge held that particulars of negligence were not mandatory, so long as the allegation of negligence was made in the pleadings.
I have examined the record of the case before the adjudicator. In paragraph 5(a) of the amended statement of claim dated 11 th June 2024, the appellants pleaded as follows:
“On or about 23 rd December 2023, the 2 nd claimant while driving m/v reg No. KCT 793M along Mombasa Road near Cabanas was hit by a driver driving m/v reg No. KDB 042A Mitsubishi Fuso. As a result of this m/v reg No. KCT 793M suffered extensive material damage on the rear side including the right side”
In his written statement which was adopted as evidence in chief, the 2 nd appellant stated that on 23.12.23, he was driving m/v reg KCT 793M along Mombasa Road near Cabanas when m/v KDB 042A hit his m/v from the rear side. As a result of this, m/v reg KCT 793M suffered extensive material damage on the rear side including the right side of the m/v.
The 2 nd appellant added further in his evidence that police officers finalized their investigation and ascertained that the driver of m/v reg KDB 042A Mitsubishi Fuso was the one at fault. That he was issued with police Abstract No OB50/23/12/2023 wherein it was also noted that the m/v reg No. KDB 042A Mitsubishi Fuso was the one to blame. Photographs of m/v KCT 793M damaged at the rear were produced in court as the appellants’ (claimants) exhibits.
While it is true that under our jurisprudence, as a general rule there is no liability in a claim of the nature filed at the small claims court without fault, and that a claimant alleging harm or property damage must specifically outline how the defendant or respondent was negligent in their statement of claim, each case must be treated on the basis of its peculiar circumstance. The objective of pleading negligence is intended to reduce or eliminate element of surprise, by giving the other party a fair notice of what to expect at the trial. The same rules give a right to apply for particulars and where what was supplied was inadequate, to ask for better particulars.
While the Civil Procedure Rules under Order 2, sets out cases where pleadings must contain certain particulars, those cases do not include a claim based on the tort of negligence.
I find the position taken in Wachira & Another v Attorney General & Another (2003) eKLR (Ransley J) and Kenyatta Hospital v Dorcas Odongo & Another (2021) eKLR (On’gudi J), more persuasive.
The case of Ogwari v Hersi (2023) KEHC 20111 (KLR) cited by the learned adjudicator did not refer to any legislation supporting the finding that a claim founded on negligence which was without particulars of negligence, was fatally defective and untenable in law.
In certain circumstances, the court may draw inference of negligence from certain facts and evidence even where no direct evidence of negligence is presented. In the instant case, the claimants’ (appellants’) case as pleaded and presented was that his m/v was hit from the rear by the respondents’ m/v. This evidence was not controverted and, in my assessment, the appellants presented preponderance of evidence, pointing to negligence on the part of the respondents, which the respondents did not displace by counter-evidence. The appellants’ m/v having been hit from behind, an inference could be drawn that there was no proper lookout on the part of the respondents, for if due care was taken by their driver, it would have been noted that there was a vehicle ahead and evasive action would have been taken or instant brakes applied.
In the case of Multiple Hauliers (EA) Ltd v Justus Mutua Malundu & 2 others (2017) eKLR P.J. Otieno, J, held, and I agree that there is a general presumption that he who hits another from behind is ipso facto negligent. The court stated that the issues of due attention and look out come into play even if the driver ahead suddenly applied brakes.
Every driver driving behind another vehicle has a duty of care for other road users, especially those ahead of him, and from behind, such a driver would have a better view of what is ahead of him. It is also expected that one driving from behind another motor vehicle should keep a safe distance between his/her motor vehicle and that ahead of him/her.
I have said enough to demonstrate that I find merit in the appeal herein. While it is true that Section 38 of the Small Claims Court Act confines appeals to matters of law only, the failure to consider and evaluate the appellants’ evidence thereby arriving at an incorrect determination is an issue of law.
The evidence tendered by the appellants of the negligence of the respondents, on account of hit from the rear, was not displaced and I find that the trial court ought to have found the respondents 100% liable.
The claim was in nature of material damage. The appellants produced documents to prove the special damages. I accordingly allow the appeal. The order made on 28.11.24, by the trial court to dismiss the claim by the appellants is hereby set aside, and is substituted by an order allowing the claim by the appellants in its entirety. The appellants shall have costs of the appeal, and at the small claims court. It is so ordered.
DATED, SIGNED AND DELIVERED via Teams this 9 th July 2026
D.O. ONYANGO.
JUDGE.
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JUDGEMENT
This appeal arises from the 1 st and 2 nd appellants’ (claimants before the small claims court) statement of claim (as amended) on 11.6.24 seeking judgment against the 1 st and 2 nd respondents for the sum of Ksh 518,728 comprising of material damage, special damages, interest, costs and any other appropriate relief. It was alleged by the appellants that the 2 nd appellant while driving motor vehicle reg KCT 793M, the same was hit from the rear by m/v reg No. KDB 042A owned and controlled by the respondents.
The respondents filed a response dated 23.7.24 alleging that the suit was fatally defective for failure to sufficiently disclose the material particulars. The respondents also denied liability and put the appellants to strict proof of all allegations.
At the hearing, the appellants called 3 witnesses in support of their case while the respondents never adduced any evidence.
The trial court in its judgement dated 28.11.24, dismissed the 1 st and 2 nd appellants’ claim on the basis that the appellants in their amended statement of claim had failed to plead the particulars of negligence.
The appellants being dissatisfied with the judgement, filed memorandum of appeal dated 9.12.24 challenging the judgement. The grounds of appeal are as set out below:
- That the learned adjudicator erred in law and in fact in finding that the appellants did not plead particulars of negligence against the 1 st and 2 nd respondents
- That the learned adjudicator erred in law and in fact in its application of Section 24 and 32 of the Small Claims Court Act
- That the learned adjudicator erred in law and in fact in its application of the common law principle of duty of care in respect to proceedings and evidence before it
- That the learned adjudicator erred in law in failing to administer substantial justice
The appellants seek that the judgement delivered on 28.11.24 by the learned adjudicator be quashed and be replaced with one allowing the claim as presented.
The appeal was disposed of by way of written submission.
APPELLANTS’ SUBMISSION
The appellant submitted that section 3(3) of the Small Claims Court Act directs the court to apply and adopt simplified procedure in determining disputes before it.
That section 24 of the Small Claims Court Act does not specifically require for a statement of claim to itemize the particulars of negligence.
The appellants submitted that the small claims court adopted a procedure that moved away from complexities of procedure and evidence to enable ordinary citizens have an easier access and time in the courts.
The appellants submitted that it had presented sufficient evidence which was not rebutted. That the learned adjudicator ought to have found in favour of the appellants particularly as the respondents did not adduce evidence in rebuttal. The appellants cited the cases of Elrons Limited v Basil (2024) KLR and Mwangi v Wambugu (1984) KLR 453 in support of its position.
RESPONDENTS’ SUBMISSION
The respondents opposed the appeal. The respondents submitted that while small claims court is designed to be accessible and informal, the court is not a forum for speculative or ill-defined claims. That the learned adjudicator acted within the law in disallowing a claim that did not disclose a cause of action. The respondents submitted that the appellants’ statement of claim as amended on 11.6.24 was fatally defective for failure to plead negligence. That the statement of claim did not identify the specific acts or omissions allegedly committed by the respondents thus denying the latter a right to know with precision the case they were called to meet.
The respondents further submitted that the jurisdiction of the high court from small claims court is deliberately narrow and that appeals are not an opportunity to reopen the disputes. That there was no misdirection on the part of the learned adjudicator to warrant interference by this court.
DETERMINATION
From the material placed before court and the submissions, the appeal herein fails or stands on the question relating to how much weight is to be given to the omission to particularise negligence, in a case of this nature filed at the small claims court.
It would appear that opinion on the import of the omission to particularise acts or facts of negligence in a claim or plaint is divergent on the point. One school of thought is that failure to particularise negligence is not mandatory, so long as the allegation of negligence has been made in the pleadings.
In Ogwari v Hersi (2023) KEHC 20111 (KLR), Magare J. held that particularization of acts of negligence is mandatory.
On the other hand, in Wachira & Another v Attorney General & Another (2003) eKLR Ransley J (as he then was) held that, although the civil procedure sets out cases where pleadings must contain certain particulars, those cases do not include claims based on negligence.
A similar position was taken in Kenyatta National Hospital v Dorcas Odongo & Another (2021) eKLR by Ong’udi J (as she then was). The learned judge held that particulars of negligence were not mandatory, so long as the allegation of negligence was made in the pleadings.
I have examined the record of the case before the adjudicator. In paragraph 5(a) of the amended statement of claim dated 11 th June 2024, the appellants pleaded as follows:
“On or about 23 rd December 2023, the 2 nd claimant while driving m/v reg No. KCT 793M along Mombasa Road near Cabanas was hit by a driver driving m/v reg No. KDB 042A Mitsubishi Fuso. As a result of this m/v reg No. KCT 793M suffered extensive material damage on the rear side including the right side”
In his written statement which was adopted as evidence in chief, the 2 nd appellant stated that on 23.12.23, he was driving m/v reg KCT 793M along Mombasa Road near Cabanas when m/v KDB 042A hit his m/v from the rear side. As a result of this, m/v reg KCT 793M suffered extensive material damage on the rear side including the right side of the m/v.
The 2 nd appellant added further in his evidence that police officers finalized their investigation and ascertained that the driver of m/v reg KDB 042A Mitsubishi Fuso was the one at fault. That he was issued with police Abstract No OB50/23/12/2023 wherein it was also noted that the m/v reg No. KDB 042A Mitsubishi Fuso was the one to blame. Photographs of m/v KCT 793M damaged at the rear were produced in court as the appellants’ (claimants) exhibits.
While it is true that under our jurisprudence, as a general rule there is no liability in a claim of the nature filed at the small claims court without fault, and that a claimant alleging harm or property damage must specifically outline how the defendant or respondent was negligent in their statement of claim, each case must be treated on the basis of its peculiar circumstance. The objective of pleading negligence is intended to reduce or eliminate element of surprise, by giving the other party a fair notice of what to expect at the trial. The same rules give a right to apply for particulars and where what was supplied was inadequate, to ask for better particulars.
While the Civil Procedure Rules under Order 2, sets out cases where pleadings must contain certain particulars, those cases do not include a claim based on the tort of negligence.
I find the position taken in Wachira & Another v Attorney General & Another (2003) eKLR (Ransley J) and Kenyatta Hospital v Dorcas Odongo & Another (2021) eKLR (On’gudi J), more persuasive.
The case of Ogwari v Hersi (2023) KEHC 20111 (KLR) cited by the learned adjudicator did not refer to any legislation supporting the finding that a claim founded on negligence which was without particulars of negligence, was fatally defective and untenable in law.
In certain circumstances, the court may draw inference of negligence from certain facts and evidence even where no direct evidence of negligence is presented. In the instant case, the claimants’ (appellants’) case as pleaded and presented was that his m/v was hit from the rear by the respondents’ m/v. This evidence was not controverted and, in my assessment, the appellants presented preponderance of evidence, pointing to negligence on the part of the respondents, which the respondents did not displace by counter-evidence. The appellants’ m/v having been hit from behind, an inference could be drawn that there was no proper lookout on the part of the respondents, for if due care was taken by their driver, it would have been noted that there was a vehicle ahead and evasive action would have been taken or instant brakes applied.
In the case of Multiple Hauliers (EA) Ltd v Justus Mutua Malundu & 2 others (2017) eKLR P.J. Otieno, J, held, and I agree that there is a general presumption that he who hits another from behind is ipso facto negligent. The court stated that the issues of due attention and look out come into play even if the driver ahead suddenly applied brakes.
Every driver driving behind another vehicle has a duty of care for other road users, especially those ahead of him, and from behind, such a driver would have a better view of what is ahead of him. It is also expected that one driving from behind another motor vehicle should keep a safe distance between his/her motor vehicle and that ahead of him/her.
I have said enough to demonstrate that I find merit in the appeal herein. While it is true that Section 38 of the Small Claims Court Act confines appeals to matters of law only, the failure to consider and evaluate the appellants’ evidence thereby arriving at an incorrect determination is an issue of law.
The evidence tendered by the appellants of the negligence of the respondents, on account of hit from the rear, was not displaced and I find that the trial court ought to have found the respondents 100% liable.
The claim was in nature of material damage. The appellants produced documents to prove the special damages. I accordingly allow the appeal. The order made on 28.11.24, by the trial court to dismiss the claim by the appellants is hereby set aside, and is substituted by an order allowing the claim by the appellants in its entirety. The appellants shall have costs of the appeal, and at the small claims court. It is so ordered.
DATED, SIGNED AND DELIVERED via Teams this 9 th July 2026
D.O. ONYANGO.
JUDGE.
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