- This is an appeal from the decision of the Hon. Gatamba given on 8/11/2023 in Mombasa SCCC E177 of 2023. The Appellant set out a whole 7 grounds of Appeal.
- The Appellant filed several grounds as hereunder: -
- The Learned Adjudicators erred in law by proceeding to deliver judgment outside the 60 days timeframe stipulated under Section 34 of the Small Claims Act.
- The learned Adjudicator erred in law by failing to consider the Appellant’s written submission and cited case laws.
- The learned Adjudicator erred in law by holding that the Respondent’s case remained unshaken without giving reasons thereof.
- The learned Adjudicator erred in law by failing to appreciate the law on special damages and therefore arrived on wrong conclusion that the Respondent had proved the claim.
- The Learned Adjudicator erred in law by solely holding the Appellant liable to settle the claim whist the Appellant was only but an agent to the Respondent.
- The aggrieved judgment is null and void ab-initio having been
delivered outside the statutory period.
Background
- The claimant is alleged to have been involved in material damage. The claim was filed on 15/6/2023. The court gave directions 32 days later for the first hearing. A response was filed. The case proceeded on 14/9/2023.
- The Appellant was a driver of a vehicle owned by the Respondent. The vehicle was carrying the Respondent’s nephew and a PW2. The Respondent was seeking damages for the value of repair, towing, and assessment.
Appellant’s submissions
- The Appellant field submissions in support of the Appeal. They stated that the case was not proven. Their view was the court should have dismissed the case in the court below stating that the accident was a result of a tyre burst which led him to lose control. It was their case that the Appellant was an agent of the Respondent.
- They relied on the case of Chao versus Dharjal & 4 others (1990) eKLR where the court stated that: -
“In order to escape liability the has to show that there was a probable cause of the accident which does not connote cause of negligence.”
- They relied on the case of Karisa -vs- Solanki (1969) ER 318 and Jane Wairumu Turanta- vs- Gichae John Vickery & 2 others (2013) eKLR, the court cited with authority the case of Launchbury -vs - Morgans (1973) AC 127 where it was held that:
“I think the true test on vicarious liability can best be expressed in these words; was the servant doing something that he was employed to do? If so, however improper the manner in which he was doing it, whether negligent or even fraudulently or contrary to the express orders, the master is liable.”
- They also relied on the case of Nakuru Automobile House Ltd – vs – Zavdin CA of 1986, the court observed that: -
“To establish the existence of the agency relationship, it was necessary to show that the driver was using the car at the owner's request express or implied or on his instructions and was doing so in the performance of the task or duty thereby delegated to him by the owner.”
- The appellant relied in the case of Nakuru Automobile House Ltd v Ziaudin [1987] eKLR, the Court of Appeal Nyarangi, Platt & Gachuhi JA), as per Gachuhi JA, held as doth: -
“To establish the existence of the agency relationship it was necessary to show that the driver was using the car at the owner’s request, express or implied, or on his instructions, and was doing so in performance of the task or duty thereby delegated to him by the owner. The fact that the driver was using the car with the owner’s permission and that the purpose for which the car was being used was one in which the owner had an interest or concern, was not sufficient to establish vicarious liability. Nor was there any special test of liability in relation to a family car which was owned by one spouse and driven by the other.”
- They argued that a driver cannot be sued for driving a car he is employed to drive. They prayed that the Appeal be allowed.
Respondent’s Submissions
- The respondent submitted that the suit was concluded outside 60 days. This was based on the decision of the court being outside 60 days in section 34 of the Small Claims Court Act.
- They Place reliance on the decision of Kartar Singh Dhupar & Company Limited v ARM Cement PLC (In Liquidation) (Civil Appeal 129 of 2022) [2023] KEHC 2417 (KLR) (Commercial and Tax) (23 March 2023) (Judgment). In that case Gichohi J, stated that the 60 days are cast in stone. The court has stated as:
“Guided by these authorities, this court is satisfied that the judgment delivered by Hon CA Okumu (Ms)/ Adjudicator on August 23, 2022 was done outside the statutory timelines set under section 34 of the Small Claims Court Act and hence made without jurisdiction. It is therefore a nullity, bereft of any force or effect in law.”
- According to the Respondent, the court relied on the case of Martha Wangari Karua v Independent Electoral and Boundaries Commission & 3 others [2019] eKLR where it was held that 6 months cannot be extended.
- They further relied on the case of Biosystems Consultants v Nyali Links Arcade (Civil Appeal E185 of 2023) [2023] KEHC 21068 (KLR) (31 July 2023) (Ruling), where I held as doth: -
“60 days provided under section 34 of the Small Claims Court are aspirational and the courts shall strive to meet those and in case of exceeding ensure that they use every tool at their disposal including section 30 of the Small Claims Court Act to finalise the matter.”
- The Respondent stated that the discharged this duty at trial court by tendering an Assessment Report. In addition to the Report, the motor vehicle assessment report conducted at the police station hours after the accident was tendered which further supported the findings by the Assessor.
- The Respondent relied on the case of Herbert Hahn v Amrik Singh [1985] eKLR, Where Kneller, Nyarangi JJA & Chesoni Ag JA stated as follows: -
“….special damages which must be not only claimed specially but proved strictly for they are not the direct natural or probable consequences of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and the nature of the acts themselves. This has been adumbrated by Bowen LJ in Ratcliffee v Evans (1892), 2 QB 524, 532, 533, Lord Macnaghten in Stroms Bruks Aktic Bolag v John & Peter Hutchinson, [1905] AC 515, 525, 526, Lutta JA in Kampala City Council v Nakaye, [1972] EA 446, 447 and Chesoni J, in Ouma v Nairobi City Council, [1976] KLR 297, 304. Now the next two grounds of the memorandum concern special damages which must be not only claimed specially but proved strictly for they are not the direct natural or probable consequences of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and the nature of the acts themselves. This has been adumbrated by Bowen LJ in Ratcliffee v Evans (1892), 2 QB 524, 532, 533, Lord Macnaghten in Stroms Bruks Aktic Bolag v John & Peter Hutchinson, [1905] AC 515, 525, 526, Lutta JA in Kampala City Council v Nakaye, [1972] EA 446, 447 and Chesoni J, in Ouma v Nairobi City Council, [1976] KLR 297, 304.
- They relied on the case of Felix Nyakagwa Mugira & another v James Ndotono Ng’ang’a [2020] eKLR, where Ruth N. Sitati, stated as doth;
“what is to be remembered however, is that a material damage claim is a special damage which must not only be claimed specially but must also be strictly proved for such damages, “are not the direct material or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and the nature of the acts themselves” see Halin -vs- Singh [1985] KLR 716.”
- They stated that the case was proved. It was their case that the case the Appeal is not merited and should be dismissed.
Analysis
- The breach of Section 34 of the Small Claims Court, does not entitle the court to strike out the suit. Further, the issue does not arise from the issues in the case.
- In the case of Biosystems Consultants v Nyali Links Arcade (Civil Appeal E185 of 2023) [2023] KEHC 21068 (KLR) (31 July 2023) (Ruling), I stated as follows: -
“A court was not entitled to impose a penalty that was not hitherto anticipated. The parties must know, a priori, the consequences of their actions. Any act, especially one promoting certain aspects of the Constitution could not be read mechanically. A purposive interpretation should be given to statutes so as to reveal the intention of the statute. The purpose of the Small Claims Court Act was to facilitate expeditious disposal of the disputes while at the same time respecting the right to be heard. The net result was that balancing the two may result at times to overshooting the 60 days. The 60 days did not have penal consequences for good reason. They were aspirational. That was part of having access to justice over amounts that needed not be in the normal system. Allowing the application would open floodgates that would eventually defeat the purpose of the Act.
The non- compliance went to the court’s performance and was answerable internally. It could not affect parties who were in court and ready to be heard. Defendants used various gimmicks to have matters adjourned and thereafter turned around to say, 60 days were over. The parties had wasted a full month arguing in the court and with preliminary objections that were much ado about nothing.
- Further, in Crown Beverages Limited v MFI Document Solutions Limited (Civil Appeal NO. E833 of 2021) [2023] KEHC 58 (KLR) (Civ) (17 January 2023) (Judgment)Justice Majanja stated as follows: -
“There may be instances where the delay is inordinate and such delay prejudicial to the parties. In such cases, the court may set aside the judgment as was held by the Court of Appeal in Manchester Outfitters Services Limited and Another v Standard Chartered Financial Services Limited and Another [2002] eKLR. The appellant does not contend that the failure to deliver the judgment within the stipulated timelines was prejudicial or that the delay was inordinate. I therefore reject the appellant’s contention that the judgment is null and void.”
- In Sugut v Jemutai & 3 others (Civil Appeal 110 of 2018) [2023] KECA 202 (KLR) (17 February 2023) (Judgment) Neutral citation: [2023] KECA 202 (KLR), the court of Appeal stated as dated as doth: -
Mr Magare begun by protesting the 6-year delay in delivery of the judgment, arguing that it was an injustice that can only be remedied by setting aside the judgment in its entirety. Counsel relied on the decision in Manchester Outfitters Suiting Division Ltd & Another Vs Standard Chartered Financial Services Ltd & Another [2002] eKLR for this proposition…. …….., Esther complains that the judgment of the trial court is illegal due to the delay in delivery and consequently it should be set aside, relying on Manchester Out fitters Suiting Division Ltd (supra). I concur with the observation made in that decision that a delayed judgment prolongs and increases the stress and anxiety of litigation and reduces public confidence in the judicial process. I am mindful, however, that the vicissitudes of judicial service and the pressures attendant thereto may in some instances conspire to cause such delay as occurred herein. I note that the learned Judge at the end of her judgment expressed her 'sincere and absolute regret at the most unfortunate and unintended delay' in the delivery of the judgment. Were I to accept the appellant’s submissions I would have to remit the matter to the High Court for a retrial. I apprehend that ordering a retrial would be subjecting the parties to further and unconscionable delay. Moreover, the matter has been in court since the year 2004, and it is highly probable that the memory of witnesses has considerably faded. For these reasons, I take the view that this Court as a first appellate court shall proceed to re-evaluate and re-assess the record with a view to making its own inferences of fact as is expected of us. I am unprepared to make the drastic holding that the judgment, though long delayed, was thereby a nullity.”
- Consequently, the court is of the view that the question of delay is not a ground for setting aside. Till the Respondent demonstrates prejudice, such infractions will sometimes be expected.
- The second issue was on proof of special damages. In the case of David Bagine Vs Martin Bundi [1997] eKLR, the Court of Appeal stated as follows: -
"It has been held time and again by this Court that special damages must be pleaded and strictly proved. We refer to the remarks by this Court in the case of Mariam Maghema Ali v. Jackson M. Nyambu t/a sisera store, Civil Appeal No. 5 of 1990 (unreported) and Idi Ayub Sahbani v. City Council of Nairobi (1982-88) IKAR 681 at page 684: "....special damages in addition to being pleaded, must be strictly proved as was stated by Lord Goddard C.J. in Bonham Carter vs. Hyde Park Hotel Limited [1948] 64 TLR 177 thus:
“Plaintiffs must understand that if they bring actions for damages it is for them to prove damage, it is not enough to write down the particulars and, so to speak, throw them at the head of the court, saying, 'this is what I have lost, I ask you to give me these damages.' They have to prove it"
- Nevertheless, the question of proof is an issue of fact not covered under section 38 of the Small Claims Court Act. In any case, I need not add any comment on the law as provided under rule 5 of The Small Claims Courts Rules, 2019. The Rule provides as follows: -
“5. (1) A person claiming compensation under section 12 (1) (c) of the Act in respect of a motor vehicle which has been damaged in a road traffic accident or other accident shall attach to the Statement of Claim—
(a) an itemized estimate of the cost of repair prepared by a licensed mechanic or certified motor vehicle assessor; or
(b) an itemized receipt issued in acknowledgment of money paid by the claimant to a licensed mechanic on account of repairs already carried out on the motor vehicle in question.”
- The issue is thus moot. It is not a serious issue. It cannot be raised herein having been an issue of fact. I dismiss the claim over special damages. These were proved.
- The last issue that sticks out like a sore thumb is the question whether, a claim for vicarious liability between a driver and the owner of the car is maintainable in a small claim and law. The accident occurred when the Appellant was driving the Respondent's vehicle carrying a new and another person.
- This explains why the small claims courts are singularly unqualified to handle such matters. We are faced with an owner, suing his driver over an accident the owner should have insured and taken care. The vehicle may as well have had a tyre burst. However, those are matters of evidence. The court cannot proceed on disputes between the driver and the employer. Whether as an agent or as the driver.
- The driver was carrying not his luggage or relatives but the Respondent’s relatives. For driving the Respondent’s car, the responsibility for the vehicle rested with the Respondent.
- The driver cannot be sued for the accidents that occur in the course of work. The owner assumes the risk for the driver. There was no pleading that the driving was fraudulent. To avoid the moral hazard of the owners escaping liability for driver’s cap 405 requires that the owners have to insure their vehicles for third-party risks.
- They cannot avoid remedying the consequences of having bad drivers. It is not enough to allege that they were not authorized the drivers. I don’t find the basis of liability set out in the claim to have any basis in law.
- Determining whether the Appellant was employed or not employed, by the Respondent is outside the scope of the court. It is not a normal question of personal injury. It is not a question of tortious liability but whether there is liability for not being instructed. Parties must learn when raising complex issues, that a lack of strict rules makes the determination of the aspect of liability untenable.
- The court cannot enter liability against a driver for an accident involving a motor vehicle owned by the respondent. The Respondent is not entitled to claim for compensation from his driver. Let loss follow where it was due.
- It is irrelevant that the claim was based on negligence. The vehicle belongs to the respondent. It is strictly not a claim in tort. The relationship as pleaded does not make the claim a small claims case.
- The court cannot find a driver liable to pay the owner of the vehicle in a small claims case. In the circumstances, the court finds the Appeal merited on one aspect only. The rest of the prayers are dismissed as they are Appeals of fact.
- This being a claim between an agent and an owner, the court, erred in finding the Respondent liable. Consequently, the Judgment of the small claims court is set aside and the claimant case in the Small claims court is dismissed. In the circumstances, each party is to bear their own costs in the Small Claims Court.
- Before I leave this I need to deal with one ground that I ignored. The court cannot deal with the question as to whether the court ignored submissions that were not filed. In the case of Robert Ngande Kathathi v Francis Kivuva Kitonde [2020] eKLR, the court stated as doth: -
“ Submissions, with due respect, do not amount to evidence unless expressly adopted as such. Consequently, in legal proceedings, evidence ought not to be introduced by way of submissions. As was held by Mwera, J (as he then was) in Erastus Wade Opande vs. Kenya Revenue Authority & Another Kisumu HCCA No. 46 of 2007:
“Submissions simply concretise and focus on each side’s case with a view to win the court’s decision that way. Submissions are not evidence on which a case is decided.”
19. The same Judge in Nancy Wambui Gatheru vs. Peter W Wanjere Ngugi Nairobi HCCC No. 36 of 1993 expressed himself as follows:
“Indeed and strictly speaking submissions are not part of the evidence in a case. Submissions, to this court’s view, are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim/charge or disprove it. Once the case is closed a court may well proceed to give its judgement. There are many cases especially where parties act in person where submissions are not heard. Even some counsel may opt not to submit. So submissions are not necessarily the case.”
20. Similarly, in Ngang’a & Another vs. Owiti & Another [2008] 1KLR (EP) 749, the Court held that:
“As the practice has it and especially where counsel appears, a Court may hear final submissions from them. This, strictly speaking, is not part of the case, the absence of which may do prejudice to a party. A final submission is a way by which counsel or sometimes (enlightened) parties themselves, crystallise the substance of the case, the evidence and the law relating to that case. It is, as it were, a way by which the Court’s focus is sought to be concentrated on the main aspects of the case which affect its outcome. Final submissions are not evidence. Final submissions may be heard or even dispensed with. But the main basis of a decision in a case, we can say are: the claim properly laid, evidence fully presented and the law applicable.”
21. As stated by the Court of Appeal in Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR:
“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented.”
- A party cannot raise issues of submissions at an appeal level and expect to succeed. It is not a serious ground worth discussing. It is not an independent ground. Its futility is like a pleading, I usually encountered, any other relief the court may deem fit to grant. Despite the same having never been granted for the last 200 years, it continues to populate plaints.
- Accordingly, the appeal is allowed with costs of Ksh. 50,000/= on this one aspect of agency. However, the ground of the suit having been determined outside 60 days, lacks merit and is accordingly dismissed. The court sets aside the judgment in the lower court and substitutes it with an order dismissing the suit in the Small Claims Court with each party to bearing their own costs by dint of section 33 of the small claims court
Determination
- The court makes the following orders: -
- The appeal on 60 the case having lasted more than days lacks merit and is accordingly dismissed.
- The appeal of evidence and submissions is dismissed.
- The Appeal on agency is allowed and as a result, the court sets aside the judgment in the small claims court and substitutes it with an order dismissing the suit with each party bearing their own costs
- Costs of 50,000/= to the Appellant
DELIVERED, DATED and SIGNED at MOMBASA on this 7th day of March, 2023. Judgment delivered through Microsoft Teams Online Platform.
In the presence of:
Odera Kadu & Co. Advocates for the Respondent
Mogaka Omwenga & Mabeya Advocates for the Appellant
Court Assistant - Brian