1. On 24th October 2024 a judgment was delivered against the appellant in Milimani SCCC No. E3780 of 2024, Frederick Murunga Wekesah t/a African Population & Health Research Center v. Kennedy Ogastine Ongudi.
2. Being dissatisfied with the judgment,the appellant filed the Memorandum of Appeal dated 5th November 2024 wherein he seeks the following orders;
1) This Appeal be allowed with costs.
2) The whole Judgement of the Small Claims Court at Milimani delivered by Wamae E. M. Muindi and delivered on 24th October 2024 in Claim number E3780 of 2024 be set aside.
3) That Honourable Court be pleased to enter judgment in favour of the Appellant.
4) This Honourable Court does award the Appellant costs of this Appeal.
3. The appeal is predicated on the grounds, to wit:
1) THAT the Learned Hon. Adjudicator erred in law by failing to take into account the provisions of Section 23 (1) of the Small Claims Court Act;
2) THAT the Learned Hon. Adjudicator erred in law by failing to take into account the provisions of Section 24 (f) of the Small Claims Court Act;
3) THAT the Learned Hon. Adjudicator erred in law by failing to take into account the provisions of Section 32 (1) and (4) of the Small Claims Court Act
4) THAT the Learned Hon. Adjudicator erred in law by failing to take into account the provisions of Rule 5 (1) of the Small Claims Court Rules, 2019;
5) THAT the Learned Hon. Adjudicator erred in law by failing to consider the evidence filed in the Claimant’s List and Bundle of Documents dated 16th April 2024;
6) THAT the Learned Hon. Adjudicator erred in law by failing to evaluate and assign appropriate weight to the evidence before her.
7) THAT the Learned Hon. Adjudicator erred in law by making a finding that the court did not have jurisdiction on a case of material damage that has no particulars of negligence or special damages.
8) THAT the Learned Hon. Adjudicator erred in law by failing to take into account the provisions of Article 159 (2) (d) of the Constitution.
4. The appellant is aggrieved by the fact that the trial court, dismissed the suit on the ground that it lacked jurisdiction to entertain a claim for material damage which was not supported by particulars of negligence or proof of special damages.
5. He submits that Sections 11 to 13 of the Small Claims Court Act, 2016, outline the geographical limits of the Court, the nature of claims that may be entertained, its pecuniary jurisdiction, and exclusions of jurisdiction.
6. The instant suit is a claim for material damage arising from a road traffic accident, and the amount in issue is below one million shillings according to him.
7. It therefore falls squarely within the jurisdiction of the Small Claims Court as provided under the Act.
8. The Claimant’s Statement of Claim was duly drawn and filed in compliance with Section 24 of the Small Claims Court Act, 2016, and in the prescribed manner under FormNo. SCC 1 of the Small Claims Court Rules.
9. The Claimant argues that he specifically pleaded negligence in paragraph 4 of the Statement of Claim setting out the manner in which the accident occurred, stating that he was lawfully and carefully driving when the driver of the Respondent’s motor vehicle carelessly and negligently rammed into the rear of his motor vehicle.
10. He submits that the trial suit was undefended. Consequently, the Claimant’s evidence is uncontroverted.
11. He places reliance on the case of North End Trading Company Limited (Carrying on the Business under the registered name of Kenya Refuse Handlers Limited v City Council of Nairobi [2019] eKLR where it was held that if the Claimant’s evidence remains unchallenged, then, the evidence ought to be believed. It reasoned as follows: -
“[18] In Edward Muriga Through Stanley Muriga vs. Nathaniel D. Schulter Civil Appeal No.23 of 1997, it was held that where a defendant does not adduce evidence the plaintiff’s evidence is to be believed, as allegations by the defence is not evidence.
12. Under section 27(1) of the small claims court act, 2016 on default, the act maintains that:
‘If the respondent fails to respond to the claim within the prescribed period, the Court may, either on its own motion or on the claimant’s application enter judgment for the claimant and order the relief sought in the statement of claim’
13. On special damages, the Claimant, argues that in compliance with the Small Claims Court Rules, presented the value of the loss in paragraph 3 of the Statement of Claim and specifically pleaded Kshs. 206,685.00 in paragraph 5.
14. It is his case that under paragraph 4, the Claimant maintains that his insurer assessed and repaired his motor vehicle and incurred a total of Kshs 206,685.00.
15. The only shortcoming on the part of the Claimant’s counsel was the failure to provide a detailed breakdown to demonstrate how the figure of Kshs. 206,685.00 was arrived at.
16. The Claimant tendered documentary evidence including fee notes, receipts, approved payment requisitions, and remittances which substantiated the amounts paid out in compensating the claimant.
17. Section 19 of the Small Claims Court Act grants the Small Claims Court adjudicator the power to summon witnesses and make inquiry and states that:
a. A Court may, of its own motion or at the request of any party, summon any witness and require the production of any document, record, books of accounts or other thing, which is relevant in any proceedings.
b. The Court shall inquire into any matter which it may consider relevant to a claim, whether or not a party has raised it.
18. He argues that The mere absence of a full breakdown does not defeat a claim where the pleaded figure has been corroborated by other credible evidence.
19. It is his case that The trial court improperly subjected the case to rigid and overly strict rules of evidence, contrary to Section 32 of the Small Claims Court Act, 2016, which expressly provides for the application of flexible and less technical procedures.
Analysis and determination:
20. The issues for determination are as follows;
1) Whether the appeal has merit.
2) Who shall be the costs.
Whether the appeal has merit.
21. The Court of Appeal in Ephantus Mwangi and Another v Duncan Mwangi Wambugu [1982] – 88) IKAR 278 stated that:
“
A court of Appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have alter on wrong principles in reaching the findings he did”.
22. Section 38 of the Act provides:-A person aggrieved by the decision or an order of the court may appeal against that decision or order to the high Court on matters of law.
23. This court has perused the judgment keenly and observed that The adjudicator confirmed that the accident indeed took place and it involved vehicle, registration number KCA 428Z, and motor vehicle registration number KAL 972H.
24. upon default judgment being entered,the matter proceeded by way of formal proof, with the Claimant's evidence being adopted.
25. According to the adjudicator,The Claim was not fully pleaded and the adjudicator held that he does not have a case where there is strict liability and the duty to plead negligence cannot be surmounted.
26. Section 32 of the Small Claims Court Act removed only the aspect of strict application of evidence.
27. It does not remove the duty to make and proof specifically the common law duty of care.
28. The claim was thus not fully pleaded and although the failure in the pleadings is technical in nature it however goes to the root of the claim.
29. In the statement the Claimant in Para 3 set out the nature of the negligence and Para 4 set out a brief explanation on the circumstances under which the claim arose. It is clear to me that the pleading in the case was construed by the form of claim set out in Section 24 of the Small Claims Court Act.
30. The Small Claims Court Act and its Statement of Claim form, did not by any extension introduce strict liability in accident cases.
31. The adjudicator was of the view that this did not leave the Claimant with a duty to modify the form to fit their claim.
32. It was her view that a claim for each particular type of special damage must be pleaded.
33. In Ouma v Nairobi City Council [1976]KR 304 after stressing the need for a plaintiff in order to succeed on a claim for specified damages, Chesoni J quoted in support the following passage from Bowen LU's judgment at 532-533 in Ratcliffe v Evans [1892] QB 524, an English leading case of pleading and proof of damage. "The character of the acts themselves which produce the damage, and the circumstances under which those acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much as certainty and particularity must be insisted on, both in pleadings and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry."
34. The adjudicator went ahead to hold that he has no jurisdiction to proceed on a case of material damage that has no particulars of negligence nor special damages.
35. Negligence and special damages must first be pleaded before being proved. In the case of East Produce Kenya Limited -v-Christopher Astiado Osiro in Civil Appeal No. 43/01 the court held as follows: -"It is trite law that the onus of proof is on he who alleges and in matters where negligence is alleged the position was well laid in the case of Kiema Mutuku -v- Kenya Cargo Hauling Services Ltd 1991 where it was held that "there is as yet no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence."
36. The court has taken the liberty to peruse the statement of claim and observed that the Appellant pleaded,
‘THAT on or about the 4th day of August, 2021 the Claimant's friend was lawfuly, carefully and diligently driving Motor Vehicle Registration Number KCA 428Z Subaru Impreza along the Thika Superhighway next to Roysambu roundabout when the driver of Motor vehicle registration number KAL 972H carelessly and negligently rammed into the Claimant's motor vehicle from behind thus occasioning extensive damage to the Claimant's m o t o r vehicle.
“The Claimant's insurer M/S Saniam General Insurance Limited assessed the Motor Vehicle Registration Number KCA 428Z Subaru Impreza and had it repaired by Autocorrect Garage. The Insurer as a result of the accident, incurred costs summing up to Kenya Shillings, Two Hundred and Six Thousand, Six Hundred and Eighty-Five. (Kshs. 206,685.00)”.
37. The adjudicator entered default judgment against the Respondent then proceeded under Section 30 of the Small Claims Act to enter judgment under Section 30 of the Act.
38. What is before this court for determination is an issue of law and it is well within the ambit of Section 38 of the Small Claims Act.
39. Section 3 (3) of the Small Claims Act provides that the court shall adopt such procedures as the court deems appropriate to ensure among other things, simplicity of procedure.
40. Section 24 provides that every statement of claim shall contain the nature of the claim, the summary of the claim among other particulars and that such statement shall be sufficient to inform the claim.
In the case giving rise to this appeal, the matter was filed under the Small Claims Act whereas the procedure is relaxed and flexible.
Section 17 of the Act gives the Small Claims Court control of its own procedure in hearing and determining claims before it. Section 30 of the Act allows parties during hearing of their case to choose to proceed by way of documents only without giving oral evidence before the court.
41. In the case of Elrons Limited vs Basil (2024) KLR Musoka J emphasized on the need to adopt a relaxed and simplified nature of proceeding before the Small Claims Court as provided for by the Act. The honourable judge went further to observe that the simplified procedure in the Small Claims Court was aimed at "moving away from the complexities of procedure and evidence to enable ordinary citizens with small claims to have an easier access and time in the courts".He further stated：-"It could spell doom to the Small Claims Court, reducing it to just another Magistrates Court, or High Court for that matter, bound as they are, by the layers of complex procedure and rules of evidence.
42. In my considered view, the impugned decision went outside the letter and spirit of the Small Claims court Act.
43. I find that the adjudicator erred in dismissing the appellant's claim for the reason that it was not proved. This is amplified by the fact that a default judgment had already been entered in favour of the appellant and the matter proceeding for formal proof after which it was dismissed.
44. In my view it was not a mandatory requirement of the law to list particulars of negligence so long as the claim was filed under the Small Claims Act.
45. The appeal around the claim for special damages cannot be divorced from the finding on the relaxed approach of pleading particulars in a negligence claim.
46. I therefore find that the appellant's claim was valid and properly before the court.
47. Having found as I have herein above, the court is of the view that the entire claim shall be returned to the Small Claims Court for rehearing.
Costs;
48. In Party of Independent Candidates of Kenya versus Mutula Kilonzo a 2 others HC EP No. 6 of 2013, the court stated as follows on the issue of costs:
"It is clear from the authorities that the fundamental principle underlying the award of costs is two-fold. In the first place, the award of costs is a matter in which the trial judge is given discretion But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could come to the conclusion arrived at. In the second place the general rule that costs should be awarded to the successful party, is a rule which should not be departed from without the demonstration of good grounds for doing so. "
49. The appellant is entitled to costs.
Determination:
50. The appeal has merit.
Order;
1) The Appeal is allowed.
2) The Judgement of the Small Claims Court at Milimani delivered by Wamae E. M. Muindi and delivered on 24th October 2024 in Claim number E3780 of 2024 is hereby set aside.
3) The Claim shall returned for rehearing at the small Claims Court before a different adjudicator.
4) The Appellant shall have costs of this Appeal.
2. Being dissatisfied with the judgment,the appellant filed the Memorandum of Appeal dated 5th November 2024 wherein he seeks the following orders;
1) This Appeal be allowed with costs.
2) The whole Judgement of the Small Claims Court at Milimani delivered by Wamae E. M. Muindi and delivered on 24th October 2024 in Claim number E3780 of 2024 be set aside.
3) That Honourable Court be pleased to enter judgment in favour of the Appellant.
4) This Honourable Court does award the Appellant costs of this Appeal.
3. The appeal is predicated on the grounds, to wit:
1) THAT the Learned Hon. Adjudicator erred in law by failing to take into account the provisions of Section 23 (1) of the Small Claims Court Act;
2) THAT the Learned Hon. Adjudicator erred in law by failing to take into account the provisions of Section 24 (f) of the Small Claims Court Act;
3) THAT the Learned Hon. Adjudicator erred in law by failing to take into account the provisions of Section 32 (1) and (4) of the Small Claims Court Act
4) THAT the Learned Hon. Adjudicator erred in law by failing to take into account the provisions of Rule 5 (1) of the Small Claims Court Rules, 2019;
5) THAT the Learned Hon. Adjudicator erred in law by failing to consider the evidence filed in the Claimant’s List and Bundle of Documents dated 16th April 2024;
6) THAT the Learned Hon. Adjudicator erred in law by failing to evaluate and assign appropriate weight to the evidence before her.
7) THAT the Learned Hon. Adjudicator erred in law by making a finding that the court did not have jurisdiction on a case of material damage that has no particulars of negligence or special damages.
8) THAT the Learned Hon. Adjudicator erred in law by failing to take into account the provisions of Article 159 (2) (d) of the Constitution.
4. The appellant is aggrieved by the fact that the trial court, dismissed the suit on the ground that it lacked jurisdiction to entertain a claim for material damage which was not supported by particulars of negligence or proof of special damages.
5. He submits that Sections 11 to 13 of the Small Claims Court Act, 2016, outline the geographical limits of the Court, the nature of claims that may be entertained, its pecuniary jurisdiction, and exclusions of jurisdiction.
6. The instant suit is a claim for material damage arising from a road traffic accident, and the amount in issue is below one million shillings according to him.
7. It therefore falls squarely within the jurisdiction of the Small Claims Court as provided under the Act.
8. The Claimant’s Statement of Claim was duly drawn and filed in compliance with Section 24 of the Small Claims Court Act, 2016, and in the prescribed manner under FormNo. SCC 1 of the Small Claims Court Rules.
9. The Claimant argues that he specifically pleaded negligence in paragraph 4 of the Statement of Claim setting out the manner in which the accident occurred, stating that he was lawfully and carefully driving when the driver of the Respondent’s motor vehicle carelessly and negligently rammed into the rear of his motor vehicle.
10. He submits that the trial suit was undefended. Consequently, the Claimant’s evidence is uncontroverted.
11. He places reliance on the case of North End Trading Company Limited (Carrying on the Business under the registered name of Kenya Refuse Handlers Limited v City Council of Nairobi [2019] eKLR where it was held that if the Claimant’s evidence remains unchallenged, then, the evidence ought to be believed. It reasoned as follows: -
“[18] In Edward Muriga Through Stanley Muriga vs. Nathaniel D. Schulter Civil Appeal No.23 of 1997, it was held that where a defendant does not adduce evidence the plaintiff’s evidence is to be believed, as allegations by the defence is not evidence.
12. Under section 27(1) of the small claims court act, 2016 on default, the act maintains that:
‘If the respondent fails to respond to the claim within the prescribed period, the Court may, either on its own motion or on the claimant’s application enter judgment for the claimant and order the relief sought in the statement of claim’
13. On special damages, the Claimant, argues that in compliance with the Small Claims Court Rules, presented the value of the loss in paragraph 3 of the Statement of Claim and specifically pleaded Kshs. 206,685.00 in paragraph 5.
14. It is his case that under paragraph 4, the Claimant maintains that his insurer assessed and repaired his motor vehicle and incurred a total of Kshs 206,685.00.
15. The only shortcoming on the part of the Claimant’s counsel was the failure to provide a detailed breakdown to demonstrate how the figure of Kshs. 206,685.00 was arrived at.
16. The Claimant tendered documentary evidence including fee notes, receipts, approved payment requisitions, and remittances which substantiated the amounts paid out in compensating the claimant.
17. Section 19 of the Small Claims Court Act grants the Small Claims Court adjudicator the power to summon witnesses and make inquiry and states that:
a. A Court may, of its own motion or at the request of any party, summon any witness and require the production of any document, record, books of accounts or other thing, which is relevant in any proceedings.
b. The Court shall inquire into any matter which it may consider relevant to a claim, whether or not a party has raised it.
18. He argues that The mere absence of a full breakdown does not defeat a claim where the pleaded figure has been corroborated by other credible evidence.
19. It is his case that The trial court improperly subjected the case to rigid and overly strict rules of evidence, contrary to Section 32 of the Small Claims Court Act, 2016, which expressly provides for the application of flexible and less technical procedures.
Analysis and determination:
20. The issues for determination are as follows;
1) Whether the appeal has merit.
2) Who shall be the costs.
Whether the appeal has merit.
21. The Court of Appeal in Ephantus Mwangi and Another v Duncan Mwangi Wambugu [1982] – 88) IKAR 278 stated that:
“
A court of Appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have alter on wrong principles in reaching the findings he did”.
22. Section 38 of the Act provides:-A person aggrieved by the decision or an order of the court may appeal against that decision or order to the high Court on matters of law.
23. This court has perused the judgment keenly and observed that The adjudicator confirmed that the accident indeed took place and it involved vehicle, registration number KCA 428Z, and motor vehicle registration number KAL 972H.
24. upon default judgment being entered,the matter proceeded by way of formal proof, with the Claimant's evidence being adopted.
25. According to the adjudicator,The Claim was not fully pleaded and the adjudicator held that he does not have a case where there is strict liability and the duty to plead negligence cannot be surmounted.
26. Section 32 of the Small Claims Court Act removed only the aspect of strict application of evidence.
27. It does not remove the duty to make and proof specifically the common law duty of care.
28. The claim was thus not fully pleaded and although the failure in the pleadings is technical in nature it however goes to the root of the claim.
29. In the statement the Claimant in Para 3 set out the nature of the negligence and Para 4 set out a brief explanation on the circumstances under which the claim arose. It is clear to me that the pleading in the case was construed by the form of claim set out in Section 24 of the Small Claims Court Act.
30. The Small Claims Court Act and its Statement of Claim form, did not by any extension introduce strict liability in accident cases.
31. The adjudicator was of the view that this did not leave the Claimant with a duty to modify the form to fit their claim.
32. It was her view that a claim for each particular type of special damage must be pleaded.
33. In Ouma v Nairobi City Council [1976]KR 304 after stressing the need for a plaintiff in order to succeed on a claim for specified damages, Chesoni J quoted in support the following passage from Bowen LU's judgment at 532-533 in Ratcliffe v Evans [1892] QB 524, an English leading case of pleading and proof of damage. "The character of the acts themselves which produce the damage, and the circumstances under which those acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much as certainty and particularity must be insisted on, both in pleadings and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry."
34. The adjudicator went ahead to hold that he has no jurisdiction to proceed on a case of material damage that has no particulars of negligence nor special damages.
35. Negligence and special damages must first be pleaded before being proved. In the case of East Produce Kenya Limited -v-Christopher Astiado Osiro in Civil Appeal No. 43/01 the court held as follows: -"It is trite law that the onus of proof is on he who alleges and in matters where negligence is alleged the position was well laid in the case of Kiema Mutuku -v- Kenya Cargo Hauling Services Ltd 1991 where it was held that "there is as yet no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence."
36. The court has taken the liberty to peruse the statement of claim and observed that the Appellant pleaded,
‘THAT on or about the 4th day of August, 2021 the Claimant's friend was lawfuly, carefully and diligently driving Motor Vehicle Registration Number KCA 428Z Subaru Impreza along the Thika Superhighway next to Roysambu roundabout when the driver of Motor vehicle registration number KAL 972H carelessly and negligently rammed into the Claimant's motor vehicle from behind thus occasioning extensive damage to the Claimant's m o t o r vehicle.
“The Claimant's insurer M/S Saniam General Insurance Limited assessed the Motor Vehicle Registration Number KCA 428Z Subaru Impreza and had it repaired by Autocorrect Garage. The Insurer as a result of the accident, incurred costs summing up to Kenya Shillings, Two Hundred and Six Thousand, Six Hundred and Eighty-Five. (Kshs. 206,685.00)”.
37. The adjudicator entered default judgment against the Respondent then proceeded under Section 30 of the Small Claims Act to enter judgment under Section 30 of the Act.
38. What is before this court for determination is an issue of law and it is well within the ambit of Section 38 of the Small Claims Act.
39. Section 3 (3) of the Small Claims Act provides that the court shall adopt such procedures as the court deems appropriate to ensure among other things, simplicity of procedure.
40. Section 24 provides that every statement of claim shall contain the nature of the claim, the summary of the claim among other particulars and that such statement shall be sufficient to inform the claim.
In the case giving rise to this appeal, the matter was filed under the Small Claims Act whereas the procedure is relaxed and flexible.
Section 17 of the Act gives the Small Claims Court control of its own procedure in hearing and determining claims before it. Section 30 of the Act allows parties during hearing of their case to choose to proceed by way of documents only without giving oral evidence before the court.
41. In the case of Elrons Limited vs Basil (2024) KLR Musoka J emphasized on the need to adopt a relaxed and simplified nature of proceeding before the Small Claims Court as provided for by the Act. The honourable judge went further to observe that the simplified procedure in the Small Claims Court was aimed at "moving away from the complexities of procedure and evidence to enable ordinary citizens with small claims to have an easier access and time in the courts".He further stated：-"It could spell doom to the Small Claims Court, reducing it to just another Magistrates Court, or High Court for that matter, bound as they are, by the layers of complex procedure and rules of evidence.
42. In my considered view, the impugned decision went outside the letter and spirit of the Small Claims court Act.
43. I find that the adjudicator erred in dismissing the appellant's claim for the reason that it was not proved. This is amplified by the fact that a default judgment had already been entered in favour of the appellant and the matter proceeding for formal proof after which it was dismissed.
44. In my view it was not a mandatory requirement of the law to list particulars of negligence so long as the claim was filed under the Small Claims Act.
45. The appeal around the claim for special damages cannot be divorced from the finding on the relaxed approach of pleading particulars in a negligence claim.
46. I therefore find that the appellant's claim was valid and properly before the court.
47. Having found as I have herein above, the court is of the view that the entire claim shall be returned to the Small Claims Court for rehearing.
Costs;
48. In Party of Independent Candidates of Kenya versus Mutula Kilonzo a 2 others HC EP No. 6 of 2013, the court stated as follows on the issue of costs:
"It is clear from the authorities that the fundamental principle underlying the award of costs is two-fold. In the first place, the award of costs is a matter in which the trial judge is given discretion But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could come to the conclusion arrived at. In the second place the general rule that costs should be awarded to the successful party, is a rule which should not be departed from without the demonstration of good grounds for doing so. "
49. The appellant is entitled to costs.
Determination:
50. The appeal has merit.
Order;
1) The Appeal is allowed.
2) The Judgement of the Small Claims Court at Milimani delivered by Wamae E. M. Muindi and delivered on 24th October 2024 in Claim number E3780 of 2024 is hereby set aside.
3) The Claim shall returned for rehearing at the small Claims Court before a different adjudicator.
4) The Appellant shall have costs of this Appeal.