1. The appellant being dissatisfied with the whole judgement and decree of the learned trial adjudicator Hon. W.C Keter and delivered on the 22/4/2024 Appealed vide the memorandum of appeal herein on the grounds
that ;
a. The award of general damages awarded to the respondent was manifestly and inordinately excessive in the circumstances
b. The learned trial magistrate erred in law and in fact in holding the appellant 100% or at all
c. The learned magistrate acted in error when the same failed to properly evaluate the evidence on record thus reaching erroneous decision
d. The learned trial adjudicator erred when she failed to hold that the claim was fraudulent.
e. The learned trial magistrate erred when the same misapprehended the principle applicable in assessment of damages in personal injuries claims thus occasioning miscarriage of justice
f. That the Learned Trial adjudicator erred in law when the same ignored the holding of the superior court in the authority of Ogwari v Hersi (Civil Appeal 223 of 2022) [2023] KEHC 20111 (KLR) (3 July 2023) (Judgment), which was binding upon it, pursuant to the principle of Stare decisis doctrine.
g. The Learned Trial Adjudicator erred in law when she failed to appreciate that the issues of law raised by the Appellant vide the Preliminary objection dated the 1st day of March 2024, were never the very issues considered and determined vide the cases of Githinji & Another v Pioneer Assurance Co. & Others (Civil Appeal E47 OF 2021) [2023] KEHC 26526(KLR) CIV (8 DECEMBER 2023) and Torotich VS-Kibe & 2 Others (CIVIL APPEAL E124 OF2023) [2023] KEHC 251(24 January 2024) judgment, and thus the said decision precedents were irrelevant to the issues falling for determination before her thereby failing to uphold and appreciate that she was devoid of Jurisdiction to entertain and determine the suit.
h. The Learned Trial Adjudicator erred in law when she insisted that she has jurisdiction to entertain a common law claim of tort, under the Cap 405 Laws of Kenya, which claim cannot be fashioned or categorized as small claim under the Small Claims Court Act, and which claim is not adequately envisaged under the Rules and mechanism and forms enacted under the Small Claims Court Act, and thus not meant for resolution through mechanism set out under the small claim Act and the Rules made thereunder, more so, Sections 12(3), 19(2),(3), 23(2),(5), 24, 32, 34,37(138(1 & 2) and Rules 3(1,4,5,6), 23, 31.
i. That the Learned Trial adjudicator erred in Law when it failed to appreciate that, owing to complexity and nature of claim under Cap 405, which are claim at large and mandatory statutory underpinnings, under the said Act, it is contrary to the Provisions of Article 50 of the Constitution for a claim arising under Cap 405, to be fairly and justly adjudicated under Small Claims Court Act.
j. The Act (Small Claims Court Act) as a whole, violates the Respondent’s rights of fair hearing and access to justice under Articles 48 & 50 of the Constitution of Kenya, in respect of claims under the Constitution of Kenya.
k. The Learned trial adjudicator erred in law when she failed to appreciate and interrogate the law and discern why claims under Cap 405, Laws of Kenya should not be adjudicated under Small Claims Court Act.
l. The Learned Trial Magistrate erred in Law when she insisted to entertain a matter in which she is devoid of the requisite Jurisdiction.
2. The appellant sought for Orders that: -
a) The Judgement and Decree of the Learned Trial Adjudicator dated the 22/4/2024 be set aside varied and/or quashed.
b)the court be pleased to order the small claim case mounted by the respondent ;(KISII/E041/2024) the subject of this appeal be dismissed
c)costs of the appeal and those before the adjudicator be borne by the respondents
d)any such and/or further orders that the Honourable court shall deem just and expedient in the circumstances.
APPELLANT’S SUBMISSIONS
3. The appellant in his appeal raises three issues ;
a)whether the learned trial adjudicator had the jurisdiction to hear and determine the claim before her.
b) Whether the learned adjudicator was justified in her finding on liability at 100%.
c). Whether the learned adjudicator awarded excessive damages
4. On jurisdiction, it was submitted they raised a preliminary objection in the Small Claims court that although Section 12 (1) (d)of the Small Claims Act provides that the court has jurisdiction to hear and determined cases for compensation arising to road traffic accidents, such claims are not liquidated. Also that Section 34 of the Act provides for hearing and determination of small claims within 60 days from the date of filling and thus it is impractical to hear and determine those cases within the same time lines as the defendant has to send the plaintiff for a 2nd medical examination , review the same and call in experts . The appellant further submitted that it is contrary to the provisions of Article 50 of the Constitution of Kenya for a claim arising under Cap 405 to be adjudicated under Small Claims Court Act. Also that the small claims court erred in insisting to entertain a common law claim of tort which claim cannot be categorized as small claim under the small claims Act. Appellant also relied on the case of Ogwari Vs Hersi , Mombasa High Court Civil Appeal No. 223 of 2022 where it was held that – ‘’the purpose of the Act is to handle simple matters and not complicated cases where strict proof is necessary. That does not however leave the respondent with a duty to modify the form to fit their claim. The claim to that was being dealt with clearly beyond scope of the small claims court. Therefore, i hold that such matters involving negligence and injuries arising from road traffic accidents , should be filed in the chief magistrates court. If for any reason they have already been filed in small claims court ,the particulars of negligence must be pleaded. The nature of the form used for the claim introduces a mongrel of strict liability and negligence, which is untenable. This matter has presented to me a very unique opportunity to clarify the law on the aspects of personal injury related to the road traffic accidents are also timelines to be kept in service of notices under cap 405, insurance (motor vehicle third party risks)Act. I have found that it is impractical for such cases to be in the small claims court it does not mean that if the pleadings are properly done ,the case cannot be in the courts .it is that the act does not contemplate the claims other than assault in this courts .I direct that a claimant to file a proper suit in the chief Magistrates court.’’
5. On the issue of liability , the appellant contends that the court erred in finding the appellant 100% liable and argued that neither pedestrians or any persons were hit by appellant’s vehicle on the material day neither were any persons .They relied on the case of Nicholas Nyangwechi Miyogo Joseph Vs James Nyakundi Nyamrai and 2 others .
6. On the issue of quantum,, the appellant submitted that the said award of Ksh. 180,000/= was extremely excessive in the circumstances and suggested that an award of 50,000 would be adequate .
RESPONDENT’S SUBMISSIONS
7. In response to the appeal, the Respondent submitted that the judgment delivered on 22nd April 2024 by Hon. W.C. Keter was properly founded. On the issue of jurisdiction, the Respondent contends that the Trial Magistrate had jurisdiction under Section 12(1)(d) of the Small Claims Court Act, which expressly includes compensation for personal injuries. Reference is made to the First Schedule of the Act, which provides for personal injury claims in FORM SCC 1. The Respondent relies on the case of Gichovi v Kilem (Civil Appeal E020 of 2024) [2024] KEHC 10859 (KLR), where Justice L. Njuguna confirmed that claims relating to personal injuries fall within the scope of the Small Claims Court's jurisdiction under section 12(1)(d).
8. On liability, it was submitted trial court also found the Appellant 100% liable for the accident involving motor vehicle KCV 735R, which veered off it’s lane and hit pedestrians , including the Respondent who were off the road . The Respondent’s account, supported by a police officer and consistent under cross-examination, was not rebutted, was credible and consistent and therefore justified the court’s findings on liability and thus the Appellant’s grounds of appeal regarding liability are therefore without merit.
9. On the issue of quantum, the Respondent was awarded Ksh. 180,000/= as general damages for pain and suffering and Ksh. 12,050/= as special damages. It was submitted that the Respondent pleaded before the Trial Court that the injuries suffered included:
Bruises on the right hand and shoulder,
Blunt trauma to the forearm, foot, thigh,
Blood loss,
Physical and psychological pain.
The medical report by Dr. Peter Momanyi Morebu confirmed the said injuries. Dr Walter Adero an orthopaedic and trauma surgeon saw the respondent herein on 5.4.2024 and found that he sustained soft tissue injuries on his torso and extremities . He found that the respondent did not sustain permanent disability . it is clear that the respondent sustained moderate soft tissue injuries which healed without any complication . The trial court awarded Ksh. 180,000/= in general damages, relying on the decision in Anthony Nyamwaya v Jackline Moraa Nyandemo (2022) eKLR, where the claimant had sustained similar injuries. The Respondent also cited:
Lucy Ntibuka v Bernard Mutwiri & others [2007] eKLR
Poa Link Services Co. Ltd & Another v Sindani Boaz Bonzemo [2021]
Vincent Cheruiyot Rono v Mombasa Maize Millers Ltd [2006] eKLR
Pan Paper Mills (EA) Ltd & Another v Asha Hassan [2007] eKLR
Further, the Respondent invokes Justice Majanja’s observations in Telkom Orange Kenya Ltd v I.S.O. (Minor) suing through J.N. [2018] eKLR, where the court emphasized that general damages should reflect the nature and gravity of injuries and be comparable to other awards while giving adjustment adjusting for inflation factor . Supporting this position, the Respondent cited Stanley Maore v Geoffrey Mwenda [2004] eKLR, where the Court of Appeal noted the principle that comparable injuries should yield comparable awards. They also also cited Ugenya Bus Service v Gachoki [1982] eKLR and Jabane v Olenja [1986] KLR 661, which underscored the need for awards to remain fair yet realistic within the economic context.
10. The Respondent submitted that no error in law or principle was made by the trial court, and that the award is commensurate with the nature of injuries and past judicial awards. They referred to the case of Peter Nyangacha v Nyagaka Bisera Peter [2018] eKLR, to stress that an appellate court can only interfere with an award of damages if it is shown to be inordinately high/low or based on erroneous principles, which is not the case here.
11. On whether the trial court considered the circumstances, precedents, and submissions of the Appellant, the Respondent said that the court had the opportunity to observe the witnesses receive written submissions from both parties and relied on precedents. The court acknowledged all this in its reasoning and judgment. the appellant argues that the appeal lacks merit and that it should be dismissed with costs.
12. This is an first appellate court whose duty is to re-evaluated the entire evidence on record and arrive at its own conclusion on the issues bearing in mind that it had no opportunity to see and hear the witnesses during the trial as was held in the case of Selle and Another vs Associated Motor Boat Company Ltd & others [1968] 1EA 123 to wit :
“…this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.”
Issues for determination.
12. I have considered the memorandum of appeal, the submissions of both parties and the issues arising for determination are;
i. Whether the trial adjudicator had jurisdiction to entertain the suit for unliquidated sum ;and if so
ii. whether the respondent herein and Jared Ondigo were involved in the accident
iii. Whether liability was proved by the respondent .
iv. Whether the quantum awarded by the learned adjudicator
was excessive .
Analysis and determination.
Whether the trial adjudicator had jurisdiction to entertain the suit for unliquidated sum.
13. It is trite law that jurisdiction flows from either a Statute or the Constitution, and no court assumes jurisdiction on its own. In the case of Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd (1989) eKLR, the Court held that;
“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction… Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”
14. The jurisdiction of the Small Claims Court is anchored on Section 12 of the Small Claims Court Act. It stipulates that;-
1.Subject to this Act, the rules and any other law, the court has jurisdiction to determine any civil claim relating to—
a.a contract for sale and supply of goods or services
b.a contract relating to money held and received;
c.liability in tort in respect of loss or damage caused to any property or for the delivery or recovery of movable property;
d.compensation for personal injuries; and
e.set-off and counterclaim under any contract.
Without prejudice to the generality of subsection (1), the court may exercise any other civil jurisdiction as may be conferred under any other written law.
3.The pecuniary jurisdiction of the court shall be limited to one million shillings.
4.Without prejudice to subsection (3), the Chief Justice may determine by notice in the Gazette such other pecuniary jurisdiction of the court as the Chief Justice thinks fit.
Section 13 of the Small Claims Act provides for the matters which the Small Claims Court has no jurisdiction to entertain. These matters are particularly listed under Section 13 (5) of the Act. It provides as follows:
“A claim shall not be brought before the court if the cause of action is founded upon defamation, libel, slander, malicious prosecution or is upon a dispute over a title to or possession of land, or employment and labour relations.” [emphasis added].
15. In the case of Gichovi v Kilem (Civil Appeal E020 of 2024) [2024] KEHC 10859 (KLR) (18 September 2024) (Judgment), where Njuguna J stated as follows:
I do not associate myself with the arguments by the court in the case of Ogwari v Hersi (Civil Appeal 223 of 2022) [2023] KEHC 20111 (KLR) where it reasoned that the personal injury claims only relate to assault. Further, the decision of the court in that matter is not binding to this court since both are courts of concurrent jurisdiction. Being a claim in negligence resulting in personal injury, the adjudicator has the jurisdiction to consider the evidence placed before her and assess compensation for the injuries. In the case of Irungu v Karanja (Civil Appeal E037 of 2024) [2024] KEHC 8162 (KLR), the court was faced with a similar appeal and it declined to be guided by the case of Ogwari v. Hersi (Civil Appeal 223 of 2022) [2023] KEHC 20111 (KLR), being a court of concurrent jurisdiction as itself. The court found that the Small Claims Court bore the relevant jurisdiction under section 12(1)(d) of the Small Claims Court Act.”
16. It is an established rule of interpretation of statutes that the duty of the court is to interpret statutes by finding out the intention of the legislature . This is done by construing the language used and where a statutory provision is in a clear and unambigous language then it shall be interpreted in it’s literal meaning . The guiding principles of the small claims Act under section 3 (3) of the said Act to wit; to enhance access to justice to ordinary citizens under Article 48 of the Constitution by reducing costs of litigation and providing for simplified court procedures for filing and hearing of cases in court , also to promote efficiency under Article 159 (2) (b) of the Constitution by providing a faster way of resolving small claims and thus reducing case backlog. The said cases of Irungu v Karanja, Ogwari v. Hersi and Gichovi v Kilem were decided by courts of concurrent jurisdiction and are not binding on this court but are merely persuasive . I respectfully differ with the decision in the case of Ogwari v. Hersi Ogwari v. Hersi and 1 agree with the finding in the case of Gichovi v Kilem that Section 12 (1) (d) of the Small Claims Act is couched in clear and unambiguous terms; that the court shall have jurisdiction to hear and determine cases for compensation for personal injuries . Section 13 of that Act goes ahead and lists cases which the small claims court does not have jurisdiction to deal with . The limit of jurisdiction of the small claims courts is Ksh. 1,000,000/= Section 12 of the Small Claims Act is thus very clear on the jurisdiction of the court.. Nothing could have stopped the legislature from ousting jurisdiction of the court to hear case involving compensation for personal injuries under section 13 of the Act if it intended to do so . The learned adjudicator did not err in overruling the preliminary objection and holding that she had jurisdiction to hear matters for compensation for injuries emanating from road traffic accidents .
17. The appellant also argued that Section 34 of the Act contravenes Article 50 of the Constitution of Kenya which provides that ‘’ every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court… ‘’. The said Section 34 of the Act provides that small claims matters shall be heard and determined within 60 days from the date of filing . Article 50 provides for fair trial and the same must be read together with Articles 159 (2) (b) of the Constitution which provides for expeditious disposal of cases and Article 48 which enjoins the state to ensure access to justice to all citizens . Section 34 of the small claims Act is anchored on Article 159 (2) (b) of the Constitution . The Appellant here in filed his pleadings and proceeded with the matter till its conclusion. With the promulgation of the Constitution of Kenya 2010, it is not business as usual in court matters parties have a duty to assist the court in protecting , respecting and upholding the Constitution and thus active case management is key in all court matters including the Small claims matters . Parties have a duty ensure that they prosecute and defend their cases within the set timelines. Section 34 of the Small Claims Act thus does not violate or contradict Article 50 of the Constitution as submitted by the appellant .
18. It is therefore my considered view that the small claims court is clothed with jurisdiction to hear matters for compensation personal injury matters arising from road traffic accidents and other torts as listed in Section 12 of the Act provided that the damages awarded do not exceed the pecuniary jurisdiction of the court which is Ksh. 1,000,000/= .
19. On whether there were victims to the accident. The appellant told the court that their investigations showed that no pedestrian was hit by the vehicle during the accident. The case of the respondent is that he was involved in the accident . Cw3 said he was walking on the left side of Kisii-Migori road when he saw an on coming matatu stop in front of a lorry and the lorry veered off the road to his side as it was trying to avoid the matatu and hit him , he was injured on the head ,neck , left hand and right hand and that he has since healed. Cw4 is the clinical officer who saw Cw3 at Helcomes clinic on 5.1.24 and he noted that he sustained tenderness on the back of the head, bruises on the forehead, slight tenderness of the neck and right chin ,bruises on the palm of the left hand , injuries on the right foot the produced treatment noted (Cexh 4). Cw1 told this court that he gathered the 2 . pedestrians were hit by the lorry before it hit a perimeter wall and had been taken to Hecomes hospital next to KTRH and is supported by the occurrence book (O.B) entry of the accident though the names of the said pedestrians was not entered . They went to the said hospital and found the victims Vincent Mokaya and Jared Ondigo . RW1 John Machogu Mukigei said he is an investigator with Rapid Investigations Services and duly licensed . He said he was engaged by APA insurance company to investigate the accident herein and he found that no body was injured at the scene as per the statements of the driver and conductor and that the vehicle only damaged the wall. He said he visited the scene about 6-7 days after the incident and gathered that no body was injured at the scene and that the primary OB report was No. 44 entered about 12 hours after the accident which is said was normal . Cw2 said the secondary OB was no. 61/5/ 1/2004 he took issue with the fact that the initial report to the police was made at abut 3.00pm yet the accident was at 9.00am . Usually when there are victims to an accident a reasonable man would first of all ensure that they are taken to hospital to save their lives before reporting to the police and in most cases reportees are people who are strange to the victims and thus do not record their names in the occurrence book . It is thus clear to this court that 2 victims were involved in the accident i.e Vincent Mokaya (The respondent herein ) and Jared Ondigo who were issued with police abstracts and p3 forms by police .
Liability
19. On whether the Learned Adjudicator erred on apportioning liability at 100% against the appellant The appellant took issue with this saying that their investigations and the police officer Cw2 revealed that there were no victims of the accident. It is the case of the respondent that he was walking off the road when appellant’s vehicle lost control , hit him and caused him bodily injuries . Rw1 said that a matatu ahead of him stopped suddenly ahead of the lorry to pick passengers and he tried to swerve to avoid hitting it but unfortunately the lost control of the vehicle and it veered off the4 road and hit a perimeter wall . This was supported by Rw2 who was the turn boy of the lorry. Appellant suggested that liability be re-apportioned at 50 : 50 between him and respondent .
In Stapley –v- Gypsum Mines Limited (2) (1953) A.C 663 at P. 681 Lord Reid reasoned that:
“ To determine what cause an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law, this question must be decided as a properly instructed and reasonable jury would decide it….. The question must be determined by applying common sense to the fact of each particular case.
One may find that a matter of history, several people have been at fault and that if anyone of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes, it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly cause the accident. I doubt whether any test can apply generally.”
20. It is admitted that an accident indeed occurred involving motor vehicle registration no KCV 735R the lorry which was being driven by the driver and /or servant of the appellant herein . The appellant alleged that there was a matatu which abruptly stopped ahead of him which caused the accident but CW1 said his investigations revealed that the lorry was following the matatu closely and the matatu stopped abruptly and hence the accident . On cross examination he said that the lorry landed about 50-100 metres off the road . Rw2 and Rw3 the driver and the turn boy said that the accident was caused by the matatu which stopped abruptly . Rw2 side he kept safe distance from the matatu and hence he did not hit it . It is trite law that he who alleges must prove and that ramming into another vehicle from behind is prima facie evidence of negligence . No third party proceedings were taken out against the said matatu .There is no dispute that occurred and it is clear that the vehicle must have speeding considering that it veered off and landed about 50-100 metres off the road t . The respondent pleaded the principle of RES IPSA LIQUITOR ‘’ facts speak for themselves ‘’ it is clear to me that the proximate cause the accident was the speeding lorry veering off the road as it was trying avoiding the matatu ahead of it which it was following very closely .
Quantum.
23. The issue question is whether this court should interfere with the damages awarded by the trial court. In the case of Kemfro Africa Limited T/A Meru Express Services [1976] and another v Lubia and another (No.2) [1985] eKLR, in which the Court (Kneller, Nyarangi, JJA and Chesoni, Ag JA) stated as follows:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. It is thus clear that the discretion of a trial court in assessing general damages will only be disturbed if the trial court took into account an irrelevant facts or failed to take into account a relevant factor or that and that it arrived at an erroneous award of the damages. The trial magistrate awarded 180,000 as general damages , the appellant regard the award as excessively high .The respondent supported the award saying it is reasonable and commensurate to the injuries sustained .The purpose of an award of gen damages is not to enrich the victim but to adequately compensate such victim for the injuries sustained . The respondent herein pleaded that he sustained the following injuries;
a)bruises on the frontal region of the head.
b)blunt trauma to the neck.
c)physical and psychological pains.
d)blunt trauma to the right foot.
e)bruises on the left hand.
f)blood loss.
g)blunt trauma to the occipital region of the head.
The Court of Appeal observed in Simon Taveta vs Mercy Mutitu Njeru [2014] eKLR reasoned that: ‘’ The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.”
In the case of Peter Njuguna vs Francis Njuguna Njoroge [2015] eKLR the court awarded Kshs. 230,000/- where the plaintiff sustained the following injuries :-
a.Bruises on the occipital region of the scalp.
b.Deep cut on the forehead.
c.Bruises on the chest and lower back.
d.Bruises on the right elbow.
e.Bruises on both hands.
f.Tender left knee joint.
g.Broken tooth.
24. In the case of Francis Ochieng & Another v Alice Kajimba (2015) eKLR, the High Court reduced an award of Kshs 500,000/= to Kshs 350,000/= for multiple soft tissue injuries. Also in the =case of H. Young Construction Company Ltd v Richard Kyule Ndolo (2014) eKLR award of Kshs 250,000/= general damages were made for soft tissue injuries. I have also seen the case of Catherine Wanjiru Kingori & 3 Others =Versus= Gibson Theuri Gichubi(2005) eKLR where the Plaintiff was awarded Kshs.
350,000/= for multiple soft tissue injuries.
25. I have considered the judgement of the lower court , the nature injuries sustained by the respondent, the inflation factor , comparable awards for similar injuries in the cited authorities tendered by the parties herein I find no reason to interfere with the award of the trial court which was adequate in the circumstances .
25. Turning to the award of special damages , the same was specifically pleaded and strictly as required by law . I uphold the same .
26. In the upshot ,the appeal is devoid of merit and is hereby dismissed with costs to the respondent
27. The contents of this Judgment as relates to the jurisdiction of the small claims court to apply to Kisii High Court Civil appeal No. E050 of 2024 which is between the same parties herein.
T.A ODERA
JUDGE
7.7.25
DELIVERD VIRTUALLY VIA TEAMS PLATFORM ON THIS 7TH DAY OF JULY 2025 IN THE PRESENCE OF :
MISS OPONDO FOR THE APPELLANT
MISS NDEMO FOR THE RESPONDENT
CA KIPCHIRCHIR
that ;
a. The award of general damages awarded to the respondent was manifestly and inordinately excessive in the circumstances
b. The learned trial magistrate erred in law and in fact in holding the appellant 100% or at all
c. The learned magistrate acted in error when the same failed to properly evaluate the evidence on record thus reaching erroneous decision
d. The learned trial adjudicator erred when she failed to hold that the claim was fraudulent.
e. The learned trial magistrate erred when the same misapprehended the principle applicable in assessment of damages in personal injuries claims thus occasioning miscarriage of justice
f. That the Learned Trial adjudicator erred in law when the same ignored the holding of the superior court in the authority of Ogwari v Hersi (Civil Appeal 223 of 2022) [2023] KEHC 20111 (KLR) (3 July 2023) (Judgment), which was binding upon it, pursuant to the principle of Stare decisis doctrine.
g. The Learned Trial Adjudicator erred in law when she failed to appreciate that the issues of law raised by the Appellant vide the Preliminary objection dated the 1st day of March 2024, were never the very issues considered and determined vide the cases of Githinji & Another v Pioneer Assurance Co. & Others (Civil Appeal E47 OF 2021) [2023] KEHC 26526(KLR) CIV (8 DECEMBER 2023) and Torotich VS-Kibe & 2 Others (CIVIL APPEAL E124 OF2023) [2023] KEHC 251(24 January 2024) judgment, and thus the said decision precedents were irrelevant to the issues falling for determination before her thereby failing to uphold and appreciate that she was devoid of Jurisdiction to entertain and determine the suit.
h. The Learned Trial Adjudicator erred in law when she insisted that she has jurisdiction to entertain a common law claim of tort, under the Cap 405 Laws of Kenya, which claim cannot be fashioned or categorized as small claim under the Small Claims Court Act, and which claim is not adequately envisaged under the Rules and mechanism and forms enacted under the Small Claims Court Act, and thus not meant for resolution through mechanism set out under the small claim Act and the Rules made thereunder, more so, Sections 12(3), 19(2),(3), 23(2),(5), 24, 32, 34,37(138(1 & 2) and Rules 3(1,4,5,6), 23, 31.
i. That the Learned Trial adjudicator erred in Law when it failed to appreciate that, owing to complexity and nature of claim under Cap 405, which are claim at large and mandatory statutory underpinnings, under the said Act, it is contrary to the Provisions of Article 50 of the Constitution for a claim arising under Cap 405, to be fairly and justly adjudicated under Small Claims Court Act.
j. The Act (Small Claims Court Act) as a whole, violates the Respondent’s rights of fair hearing and access to justice under Articles 48 & 50 of the Constitution of Kenya, in respect of claims under the Constitution of Kenya.
k. The Learned trial adjudicator erred in law when she failed to appreciate and interrogate the law and discern why claims under Cap 405, Laws of Kenya should not be adjudicated under Small Claims Court Act.
l. The Learned Trial Magistrate erred in Law when she insisted to entertain a matter in which she is devoid of the requisite Jurisdiction.
2. The appellant sought for Orders that: -
a) The Judgement and Decree of the Learned Trial Adjudicator dated the 22/4/2024 be set aside varied and/or quashed.
b)the court be pleased to order the small claim case mounted by the respondent ;(KISII/E041/2024) the subject of this appeal be dismissed
c)costs of the appeal and those before the adjudicator be borne by the respondents
d)any such and/or further orders that the Honourable court shall deem just and expedient in the circumstances.
APPELLANT’S SUBMISSIONS
3. The appellant in his appeal raises three issues ;
a)whether the learned trial adjudicator had the jurisdiction to hear and determine the claim before her.
b) Whether the learned adjudicator was justified in her finding on liability at 100%.
c). Whether the learned adjudicator awarded excessive damages
4. On jurisdiction, it was submitted they raised a preliminary objection in the Small Claims court that although Section 12 (1) (d)of the Small Claims Act provides that the court has jurisdiction to hear and determined cases for compensation arising to road traffic accidents, such claims are not liquidated. Also that Section 34 of the Act provides for hearing and determination of small claims within 60 days from the date of filling and thus it is impractical to hear and determine those cases within the same time lines as the defendant has to send the plaintiff for a 2nd medical examination , review the same and call in experts . The appellant further submitted that it is contrary to the provisions of Article 50 of the Constitution of Kenya for a claim arising under Cap 405 to be adjudicated under Small Claims Court Act. Also that the small claims court erred in insisting to entertain a common law claim of tort which claim cannot be categorized as small claim under the small claims Act. Appellant also relied on the case of Ogwari Vs Hersi , Mombasa High Court Civil Appeal No. 223 of 2022 where it was held that – ‘’the purpose of the Act is to handle simple matters and not complicated cases where strict proof is necessary. That does not however leave the respondent with a duty to modify the form to fit their claim. The claim to that was being dealt with clearly beyond scope of the small claims court. Therefore, i hold that such matters involving negligence and injuries arising from road traffic accidents , should be filed in the chief magistrates court. If for any reason they have already been filed in small claims court ,the particulars of negligence must be pleaded. The nature of the form used for the claim introduces a mongrel of strict liability and negligence, which is untenable. This matter has presented to me a very unique opportunity to clarify the law on the aspects of personal injury related to the road traffic accidents are also timelines to be kept in service of notices under cap 405, insurance (motor vehicle third party risks)Act. I have found that it is impractical for such cases to be in the small claims court it does not mean that if the pleadings are properly done ,the case cannot be in the courts .it is that the act does not contemplate the claims other than assault in this courts .I direct that a claimant to file a proper suit in the chief Magistrates court.’’
5. On the issue of liability , the appellant contends that the court erred in finding the appellant 100% liable and argued that neither pedestrians or any persons were hit by appellant’s vehicle on the material day neither were any persons .They relied on the case of Nicholas Nyangwechi Miyogo Joseph Vs James Nyakundi Nyamrai and 2 others .
6. On the issue of quantum,, the appellant submitted that the said award of Ksh. 180,000/= was extremely excessive in the circumstances and suggested that an award of 50,000 would be adequate .
RESPONDENT’S SUBMISSIONS
7. In response to the appeal, the Respondent submitted that the judgment delivered on 22nd April 2024 by Hon. W.C. Keter was properly founded. On the issue of jurisdiction, the Respondent contends that the Trial Magistrate had jurisdiction under Section 12(1)(d) of the Small Claims Court Act, which expressly includes compensation for personal injuries. Reference is made to the First Schedule of the Act, which provides for personal injury claims in FORM SCC 1. The Respondent relies on the case of Gichovi v Kilem (Civil Appeal E020 of 2024) [2024] KEHC 10859 (KLR), where Justice L. Njuguna confirmed that claims relating to personal injuries fall within the scope of the Small Claims Court's jurisdiction under section 12(1)(d).
8. On liability, it was submitted trial court also found the Appellant 100% liable for the accident involving motor vehicle KCV 735R, which veered off it’s lane and hit pedestrians , including the Respondent who were off the road . The Respondent’s account, supported by a police officer and consistent under cross-examination, was not rebutted, was credible and consistent and therefore justified the court’s findings on liability and thus the Appellant’s grounds of appeal regarding liability are therefore without merit.
9. On the issue of quantum, the Respondent was awarded Ksh. 180,000/= as general damages for pain and suffering and Ksh. 12,050/= as special damages. It was submitted that the Respondent pleaded before the Trial Court that the injuries suffered included:
Bruises on the right hand and shoulder,
Blunt trauma to the forearm, foot, thigh,
Blood loss,
Physical and psychological pain.
The medical report by Dr. Peter Momanyi Morebu confirmed the said injuries. Dr Walter Adero an orthopaedic and trauma surgeon saw the respondent herein on 5.4.2024 and found that he sustained soft tissue injuries on his torso and extremities . He found that the respondent did not sustain permanent disability . it is clear that the respondent sustained moderate soft tissue injuries which healed without any complication . The trial court awarded Ksh. 180,000/= in general damages, relying on the decision in Anthony Nyamwaya v Jackline Moraa Nyandemo (2022) eKLR, where the claimant had sustained similar injuries. The Respondent also cited:
Lucy Ntibuka v Bernard Mutwiri & others [2007] eKLR
Poa Link Services Co. Ltd & Another v Sindani Boaz Bonzemo [2021]
Vincent Cheruiyot Rono v Mombasa Maize Millers Ltd [2006] eKLR
Pan Paper Mills (EA) Ltd & Another v Asha Hassan [2007] eKLR
Further, the Respondent invokes Justice Majanja’s observations in Telkom Orange Kenya Ltd v I.S.O. (Minor) suing through J.N. [2018] eKLR, where the court emphasized that general damages should reflect the nature and gravity of injuries and be comparable to other awards while giving adjustment adjusting for inflation factor . Supporting this position, the Respondent cited Stanley Maore v Geoffrey Mwenda [2004] eKLR, where the Court of Appeal noted the principle that comparable injuries should yield comparable awards. They also also cited Ugenya Bus Service v Gachoki [1982] eKLR and Jabane v Olenja [1986] KLR 661, which underscored the need for awards to remain fair yet realistic within the economic context.
10. The Respondent submitted that no error in law or principle was made by the trial court, and that the award is commensurate with the nature of injuries and past judicial awards. They referred to the case of Peter Nyangacha v Nyagaka Bisera Peter [2018] eKLR, to stress that an appellate court can only interfere with an award of damages if it is shown to be inordinately high/low or based on erroneous principles, which is not the case here.
11. On whether the trial court considered the circumstances, precedents, and submissions of the Appellant, the Respondent said that the court had the opportunity to observe the witnesses receive written submissions from both parties and relied on precedents. The court acknowledged all this in its reasoning and judgment. the appellant argues that the appeal lacks merit and that it should be dismissed with costs.
12. This is an first appellate court whose duty is to re-evaluated the entire evidence on record and arrive at its own conclusion on the issues bearing in mind that it had no opportunity to see and hear the witnesses during the trial as was held in the case of Selle and Another vs Associated Motor Boat Company Ltd & others [1968] 1EA 123 to wit :
“…this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.”
Issues for determination.
12. I have considered the memorandum of appeal, the submissions of both parties and the issues arising for determination are;
i. Whether the trial adjudicator had jurisdiction to entertain the suit for unliquidated sum ;and if so
ii. whether the respondent herein and Jared Ondigo were involved in the accident
iii. Whether liability was proved by the respondent .
iv. Whether the quantum awarded by the learned adjudicator
was excessive .
Analysis and determination.
Whether the trial adjudicator had jurisdiction to entertain the suit for unliquidated sum.
13. It is trite law that jurisdiction flows from either a Statute or the Constitution, and no court assumes jurisdiction on its own. In the case of Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd (1989) eKLR, the Court held that;
“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction… Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”
14. The jurisdiction of the Small Claims Court is anchored on Section 12 of the Small Claims Court Act. It stipulates that;-
1.Subject to this Act, the rules and any other law, the court has jurisdiction to determine any civil claim relating to—
a.a contract for sale and supply of goods or services
b.a contract relating to money held and received;
c.liability in tort in respect of loss or damage caused to any property or for the delivery or recovery of movable property;
d.compensation for personal injuries; and
e.set-off and counterclaim under any contract.
Without prejudice to the generality of subsection (1), the court may exercise any other civil jurisdiction as may be conferred under any other written law.
3.The pecuniary jurisdiction of the court shall be limited to one million shillings.
4.Without prejudice to subsection (3), the Chief Justice may determine by notice in the Gazette such other pecuniary jurisdiction of the court as the Chief Justice thinks fit.
Section 13 of the Small Claims Act provides for the matters which the Small Claims Court has no jurisdiction to entertain. These matters are particularly listed under Section 13 (5) of the Act. It provides as follows:
“A claim shall not be brought before the court if the cause of action is founded upon defamation, libel, slander, malicious prosecution or is upon a dispute over a title to or possession of land, or employment and labour relations.” [emphasis added].
15. In the case of Gichovi v Kilem (Civil Appeal E020 of 2024) [2024] KEHC 10859 (KLR) (18 September 2024) (Judgment), where Njuguna J stated as follows:
I do not associate myself with the arguments by the court in the case of Ogwari v Hersi (Civil Appeal 223 of 2022) [2023] KEHC 20111 (KLR) where it reasoned that the personal injury claims only relate to assault. Further, the decision of the court in that matter is not binding to this court since both are courts of concurrent jurisdiction. Being a claim in negligence resulting in personal injury, the adjudicator has the jurisdiction to consider the evidence placed before her and assess compensation for the injuries. In the case of Irungu v Karanja (Civil Appeal E037 of 2024) [2024] KEHC 8162 (KLR), the court was faced with a similar appeal and it declined to be guided by the case of Ogwari v. Hersi (Civil Appeal 223 of 2022) [2023] KEHC 20111 (KLR), being a court of concurrent jurisdiction as itself. The court found that the Small Claims Court bore the relevant jurisdiction under section 12(1)(d) of the Small Claims Court Act.”
16. It is an established rule of interpretation of statutes that the duty of the court is to interpret statutes by finding out the intention of the legislature . This is done by construing the language used and where a statutory provision is in a clear and unambigous language then it shall be interpreted in it’s literal meaning . The guiding principles of the small claims Act under section 3 (3) of the said Act to wit; to enhance access to justice to ordinary citizens under Article 48 of the Constitution by reducing costs of litigation and providing for simplified court procedures for filing and hearing of cases in court , also to promote efficiency under Article 159 (2) (b) of the Constitution by providing a faster way of resolving small claims and thus reducing case backlog. The said cases of Irungu v Karanja, Ogwari v. Hersi and Gichovi v Kilem were decided by courts of concurrent jurisdiction and are not binding on this court but are merely persuasive . I respectfully differ with the decision in the case of Ogwari v. Hersi Ogwari v. Hersi and 1 agree with the finding in the case of Gichovi v Kilem that Section 12 (1) (d) of the Small Claims Act is couched in clear and unambiguous terms; that the court shall have jurisdiction to hear and determine cases for compensation for personal injuries . Section 13 of that Act goes ahead and lists cases which the small claims court does not have jurisdiction to deal with . The limit of jurisdiction of the small claims courts is Ksh. 1,000,000/= Section 12 of the Small Claims Act is thus very clear on the jurisdiction of the court.. Nothing could have stopped the legislature from ousting jurisdiction of the court to hear case involving compensation for personal injuries under section 13 of the Act if it intended to do so . The learned adjudicator did not err in overruling the preliminary objection and holding that she had jurisdiction to hear matters for compensation for injuries emanating from road traffic accidents .
17. The appellant also argued that Section 34 of the Act contravenes Article 50 of the Constitution of Kenya which provides that ‘’ every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court… ‘’. The said Section 34 of the Act provides that small claims matters shall be heard and determined within 60 days from the date of filing . Article 50 provides for fair trial and the same must be read together with Articles 159 (2) (b) of the Constitution which provides for expeditious disposal of cases and Article 48 which enjoins the state to ensure access to justice to all citizens . Section 34 of the small claims Act is anchored on Article 159 (2) (b) of the Constitution . The Appellant here in filed his pleadings and proceeded with the matter till its conclusion. With the promulgation of the Constitution of Kenya 2010, it is not business as usual in court matters parties have a duty to assist the court in protecting , respecting and upholding the Constitution and thus active case management is key in all court matters including the Small claims matters . Parties have a duty ensure that they prosecute and defend their cases within the set timelines. Section 34 of the Small Claims Act thus does not violate or contradict Article 50 of the Constitution as submitted by the appellant .
18. It is therefore my considered view that the small claims court is clothed with jurisdiction to hear matters for compensation personal injury matters arising from road traffic accidents and other torts as listed in Section 12 of the Act provided that the damages awarded do not exceed the pecuniary jurisdiction of the court which is Ksh. 1,000,000/= .
19. On whether there were victims to the accident. The appellant told the court that their investigations showed that no pedestrian was hit by the vehicle during the accident. The case of the respondent is that he was involved in the accident . Cw3 said he was walking on the left side of Kisii-Migori road when he saw an on coming matatu stop in front of a lorry and the lorry veered off the road to his side as it was trying to avoid the matatu and hit him , he was injured on the head ,neck , left hand and right hand and that he has since healed. Cw4 is the clinical officer who saw Cw3 at Helcomes clinic on 5.1.24 and he noted that he sustained tenderness on the back of the head, bruises on the forehead, slight tenderness of the neck and right chin ,bruises on the palm of the left hand , injuries on the right foot the produced treatment noted (Cexh 4). Cw1 told this court that he gathered the 2 . pedestrians were hit by the lorry before it hit a perimeter wall and had been taken to Hecomes hospital next to KTRH and is supported by the occurrence book (O.B) entry of the accident though the names of the said pedestrians was not entered . They went to the said hospital and found the victims Vincent Mokaya and Jared Ondigo . RW1 John Machogu Mukigei said he is an investigator with Rapid Investigations Services and duly licensed . He said he was engaged by APA insurance company to investigate the accident herein and he found that no body was injured at the scene as per the statements of the driver and conductor and that the vehicle only damaged the wall. He said he visited the scene about 6-7 days after the incident and gathered that no body was injured at the scene and that the primary OB report was No. 44 entered about 12 hours after the accident which is said was normal . Cw2 said the secondary OB was no. 61/5/ 1/2004 he took issue with the fact that the initial report to the police was made at abut 3.00pm yet the accident was at 9.00am . Usually when there are victims to an accident a reasonable man would first of all ensure that they are taken to hospital to save their lives before reporting to the police and in most cases reportees are people who are strange to the victims and thus do not record their names in the occurrence book . It is thus clear to this court that 2 victims were involved in the accident i.e Vincent Mokaya (The respondent herein ) and Jared Ondigo who were issued with police abstracts and p3 forms by police .
Liability
19. On whether the Learned Adjudicator erred on apportioning liability at 100% against the appellant The appellant took issue with this saying that their investigations and the police officer Cw2 revealed that there were no victims of the accident. It is the case of the respondent that he was walking off the road when appellant’s vehicle lost control , hit him and caused him bodily injuries . Rw1 said that a matatu ahead of him stopped suddenly ahead of the lorry to pick passengers and he tried to swerve to avoid hitting it but unfortunately the lost control of the vehicle and it veered off the4 road and hit a perimeter wall . This was supported by Rw2 who was the turn boy of the lorry. Appellant suggested that liability be re-apportioned at 50 : 50 between him and respondent .
In Stapley –v- Gypsum Mines Limited (2) (1953) A.C 663 at P. 681 Lord Reid reasoned that:
“ To determine what cause an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law, this question must be decided as a properly instructed and reasonable jury would decide it….. The question must be determined by applying common sense to the fact of each particular case.
One may find that a matter of history, several people have been at fault and that if anyone of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes, it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly cause the accident. I doubt whether any test can apply generally.”
20. It is admitted that an accident indeed occurred involving motor vehicle registration no KCV 735R the lorry which was being driven by the driver and /or servant of the appellant herein . The appellant alleged that there was a matatu which abruptly stopped ahead of him which caused the accident but CW1 said his investigations revealed that the lorry was following the matatu closely and the matatu stopped abruptly and hence the accident . On cross examination he said that the lorry landed about 50-100 metres off the road . Rw2 and Rw3 the driver and the turn boy said that the accident was caused by the matatu which stopped abruptly . Rw2 side he kept safe distance from the matatu and hence he did not hit it . It is trite law that he who alleges must prove and that ramming into another vehicle from behind is prima facie evidence of negligence . No third party proceedings were taken out against the said matatu .There is no dispute that occurred and it is clear that the vehicle must have speeding considering that it veered off and landed about 50-100 metres off the road t . The respondent pleaded the principle of RES IPSA LIQUITOR ‘’ facts speak for themselves ‘’ it is clear to me that the proximate cause the accident was the speeding lorry veering off the road as it was trying avoiding the matatu ahead of it which it was following very closely .
Quantum.
23. The issue question is whether this court should interfere with the damages awarded by the trial court. In the case of Kemfro Africa Limited T/A Meru Express Services [1976] and another v Lubia and another (No.2) [1985] eKLR, in which the Court (Kneller, Nyarangi, JJA and Chesoni, Ag JA) stated as follows:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. It is thus clear that the discretion of a trial court in assessing general damages will only be disturbed if the trial court took into account an irrelevant facts or failed to take into account a relevant factor or that and that it arrived at an erroneous award of the damages. The trial magistrate awarded 180,000 as general damages , the appellant regard the award as excessively high .The respondent supported the award saying it is reasonable and commensurate to the injuries sustained .The purpose of an award of gen damages is not to enrich the victim but to adequately compensate such victim for the injuries sustained . The respondent herein pleaded that he sustained the following injuries;
a)bruises on the frontal region of the head.
b)blunt trauma to the neck.
c)physical and psychological pains.
d)blunt trauma to the right foot.
e)bruises on the left hand.
f)blood loss.
g)blunt trauma to the occipital region of the head.
The Court of Appeal observed in Simon Taveta vs Mercy Mutitu Njeru [2014] eKLR reasoned that: ‘’ The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.”
In the case of Peter Njuguna vs Francis Njuguna Njoroge [2015] eKLR the court awarded Kshs. 230,000/- where the plaintiff sustained the following injuries :-
a.Bruises on the occipital region of the scalp.
b.Deep cut on the forehead.
c.Bruises on the chest and lower back.
d.Bruises on the right elbow.
e.Bruises on both hands.
f.Tender left knee joint.
g.Broken tooth.
24. In the case of Francis Ochieng & Another v Alice Kajimba (2015) eKLR, the High Court reduced an award of Kshs 500,000/= to Kshs 350,000/= for multiple soft tissue injuries. Also in the =case of H. Young Construction Company Ltd v Richard Kyule Ndolo (2014) eKLR award of Kshs 250,000/= general damages were made for soft tissue injuries. I have also seen the case of Catherine Wanjiru Kingori & 3 Others =Versus= Gibson Theuri Gichubi(2005) eKLR where the Plaintiff was awarded Kshs.
350,000/= for multiple soft tissue injuries.
25. I have considered the judgement of the lower court , the nature injuries sustained by the respondent, the inflation factor , comparable awards for similar injuries in the cited authorities tendered by the parties herein I find no reason to interfere with the award of the trial court which was adequate in the circumstances .
25. Turning to the award of special damages , the same was specifically pleaded and strictly as required by law . I uphold the same .
26. In the upshot ,the appeal is devoid of merit and is hereby dismissed with costs to the respondent
27. The contents of this Judgment as relates to the jurisdiction of the small claims court to apply to Kisii High Court Civil appeal No. E050 of 2024 which is between the same parties herein.
T.A ODERA
JUDGE
7.7.25
DELIVERD VIRTUALLY VIA TEAMS PLATFORM ON THIS 7TH DAY OF JULY 2025 IN THE PRESENCE OF :
MISS OPONDO FOR THE APPELLANT
MISS NDEMO FOR THE RESPONDENT
CA KIPCHIRCHIR