(Being an appeal from the Judgement of Hon. B. Luova delivered on 4th August, 2022 in SCCC E155 of 2022 at the Small Claims Court in Machakos)
Background
1. The appellant seeks to overturn the decision rendered in the Small Claims Court (SCC) No. E155 of 2022 in which the trial court awarded the respondent special damages of Ksh 891,600.
2. The genesis of this case is a Statement of Claim dated 4th May 2022, filed by the respondent herein at the SCC. The respondent allege that on 29th January 2022, the appellant’s, motor vehicle registration number KCU 024R/ZG0573 was so negligently driven by the appellant’s driver. As a result, the vehicle veered off road and rammed into assorted concrete posts, other concrete materials and materials at the respondent’s site, causing damage valued at a total of KShs.950,500. The respondent further claimed to have incurred Kshs.1,100 in obtaining the motor vehicle copy of records bringing the total claim to KShs.951,600. He therefore sought judgment against the appellant for this amount, together with interest at court rates from 29th January 2022, and costs of the claim.
3. In a Statement of defence dated 2oth May 2022, the appellant denied the claim in its entirety and put the respondent to strict proof.Without prejudice, the appellant contended that if the said accident did occur, it was solely caused or substantially contributed to by the respondent’s negligence. the appellant further argued that the cause of action was founded on an illegality as the respondent was allegedly operating an unauthorized and illegal kiosk and/or grocery shed by the road side.
4. Upon hearing both parties, the trial court in its judgment dated 4th August 2022. The court identified two issues for determination namely liability and quantum.
5. On liability, the adjudicator found the appellant 100% liable for the accident and resulting damages to the respondent’s properties.
On quantum, the trial court held that the respondent had pleaded and proved special damages of Ksh 891, 600 which it awarded. The trial court also awarded costs of the suit and interest.
The appeal
6. This decision has triggered the appeal before me. The appellant filed this appeal vide the Memorandum of Appeal dated 24th August 2022 on nine (9) grounds reproduced verbatim as follows. That-:
(1) The learned Adjudicator erred in law and in fact in awarding special damages to the respondent despite lack of strict provenance of material loss to warrant award of special damages.
(2) The learned Adjudicator erred in law and in fact by failing to appreciate that the burden of proof of special damages strictly rests with the Respondent herein, the Claimant in Machakos SCC Civil Suit No. E155 of 2022.
(3) The learned Adjudicator erred in law and in fact by failing to appreciate that the claim for special damages was not strictly proved to the required standard in civil cases.
(4) The learned Adjudicator erred and misdirected herself in awarding special damages to a tune of Kshs. 891,600.00 in the absence of an expert report on the extent of material loss occasioned.
(5) The learned Adjudicator erred and misdirected herself in awarding special damages anchored on the handwritten purported inventory by the Respondent despite lack of the requisite expert report on the extent of material loss.
(6) The learned Adjudicator erred and misdirected herself in shifting the burden of proof to the Appellant to disprove the handwritten purported inventory by the Respondent contrary to the provisions of section 107 and 109 of the Evidence Act that requires that who alleges has to prove.
(7) The learned Adjudicator erred in law and in fact in failing to consider and take into account the authorities placed before her touching on pertinent and substantial points of law and facts so as to arrive at a just and fair decision.
(8) The Learned Adjudicator erred in fact and in law in failing to consider the submissions by the Appellant on the issue of strict provenance of special damages consequently leading to an erroneous decision.
(9) Such other, further, additional and/or incidental grounds as may emerge or be canvassed at the Hearing of this Appeal.
7. Consequently, the appellant prays that the judgment issued and delivered on 4th August 2022 be set aside and substituted with an order dismissing Machakos SCC Civil Suit No. E155 of 2022 for want of proof and for costs of the appeal.
8. The appeal was canvassed by way of written submissions. The appellant filed two sets of written submissions dated 31st July 2024 and 30th September 2024 in support of the appeal. The respondent in rebuttal filed written submissions dated 20th January 2025. A summary of these submissions are provided below.
Appellant’s submissions
9. The appellant submits that it is a well-established legal principle that special damages must be specifically pleaded and strictly proved. To support this submission, reliance is placed on the Court of Appeal decision in Douglas Odhiambo Apel & another v Telkom Kenya Limited [2014] eKLR.
10. It is argued that the respondent failed to sufficiently substantiate this claim for material damage to the requisite legal standard. the appellant contends that the burden of proof for special damages, as consistently affirmed in numerous court precedents, requires that such damages be both pleaded and proved beyond reasonable doubt. In this regard, the appellant cites Charles Mutachwa & 2 others v Phares Njenga Kibaki [2021] eKLR.
11. The appellant further submits that the inventory of damages was compiled solely by the respondent, who is the yard owner, and not a certified expert in loss assessment but a civil servant. It is urged that the respondent further demonstrated that he did not present any assessment reports or receipts to substantiate the value or purchase of the items in his yard. It is therefore contended that applying the stringent proof requirement, the trial court had no proper basis to support the respondent claim for material damage. The appellant relies on Bonham Carter -vs- Hyde Park Ltd [1948]64 TLR 177 as quoted in Benedeta Wanjiku Kimani -vs- Changwon Cheboi & Another [2013] eKLR to reinforce this position.
12. The appellant also submit that the respondent has failed to prove that the appellant was responsible for the accident. It is noted that the Police Abstract dated 2nd February 2022 indicated that the respondent was not present at the scene, and it did not identify the vehicle involved.
13. It is the appellant’s case that the respondent did not adduce evidence to establish negligence on the part of the appellant, nor to show that such negligence caused damage to the respondent’s yard. The appellant relies on Nadwa v Kenya Kazi Ltd (1988) eKLR to buttress this contention. The appellant asserts that the evidence presented by the respondent was largely circumstantial and insufficient to establish liability.
14. It is further contended that the respondent's property, where the alleged accident occurred, was constructed on or had encroached upon a road reserve, which goes against the clear provisions of the Kenya Roads Act, No. 2 of 2007. The appellant therefore argues that the construction was unauthorized and illegal.
15. Finally, the appellant submits that the respondent is only entitled to special damages that were both pleaded and proved by way of receipts. The respondent pleaded and proved special damages of Kshs. 550 for a motor vehicle search certificate and the appellant urges this court to award this amount to the respondent.
Respondent’s submissions
16. The respondent submits that the issues for determination in this appeal are whether or not the appeal herein is tenable in law; whether the findings of the learned trial adjudicator were well founded or whether the learned trial adjudicator misapprehended the law and thereby reached wrong conclusions; and who should bear the costs.
17. On the first issue, it is submitted that the Record of Appeal as filed by the appellant is incomplete for the reason that the same lacks the certified decree being appealed against contrary to this court’s orders on 4th March 2020 and Order 42 Rule 13(4) (f).
18. The respondent relies on the decision of the court in Kilonzo David t/a Silver Bullet Bus Company v. Kyalo Kiliku (2018) eKLR where the Honourable court took the firm view that omission to include the decree or order to be appeal from record of appeal was not a procedural technicality. It is therefore submitted that the appeal before this court is incurably defective and otiose.
19. The respondent further submits that the appellate court should only interfere with the trial court’s finding of facts if it is shown that the trial court failed to take into account the circumstances of the case and the probabilitiesarising therefrom. It is argued that this is not the case in the instant matter.
20. On the issue of quantum of damages, the respondent relies on the decision in Delta Haulage Services Ltd Vs. Complast Industrial Ltd and another (2015) eKLR where the court referred to the holding of the court of Appeal in Nkunene Dairy Farmers Cooperative Society Ltd & Anor v. Ngacha Ndieya (2010) eKLR.
21. The respondent also submits that he is a competent assessor as envisioned under Rule 5(2) (a) and (c) of the Small Claims Court Rules, 2019.
22. In conclusion the respondent urges this court to dismiss this appeal with costs to the respondent.
Analysis and determination
23. I have considered the grounds of appeal, examined the record of appeal and reviewed the parties’ submissions. The first issue for determination is whether the absence of a decree renders this appeal incompetent. The respondent contends that the Record of Appeal as filed by the Appellant is incomplete as it does not contain the certified decree being appealed against, contrary to the requirements of Order 42 rule 2 of the Civil Procedure Rules.
24. Rule 30 of the Small Claims Court rules provides:
30. Appeals
A person aggrieved by the judgment or order of the Court may, pursuant to section 38 of the Act, appeal to the High Court in accordance with Order 42 of the Civil Procedure Rules.
25. Before interrogating the Order 42 of the Civil Procedure Rules, I note that the Civil Procedure Act in section 2 defines a decree as:
"decree" means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final; it includes the striking out of a plaint and the determination of any question within section 34 or section 91, but does not include—
(a)any adjudication from which an appeal lies as an appeal from an order; or
(b)any order of dismissal for default:
Provided that, for the purposes of appeal, "decree" includes judgment, and a judgment shall be appealable notwithstanding the fact that a formal decree in pursuance of such judgment may not have been drawn up or may not be capable of being drawn up;
Explanation. — A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.”
26. Order 42 Rule 2 allows an appellant to file a decree where they have not done so. It provides:
“Filing of decree or order [Order 42, rule 2]
Where no certified copy of the decree or order appealed against is filed with the memorandum of appeal, the appellant shall file such certified copy as soon as possible and in any event within such time as the court may order, and the court need not consider whether to reject the appeal summarily under section 79B of the Act until such certified copy is filed”
27. Failure to file a decree can therefore be cured under this section thus it is not a fatal technicality.
28. In addition, Order 42 Rule 13 of the Civil Procedure Rules further stipulates the documents that must be on record before an appeal is admitted to hearing. Rule (13) (f) specifically provides:
“Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record, and that such of them as are not in the possession of either party have been served on that party, that is to say—
…..(f)the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal.”
29. It is evident therefore from Order 42 Rule 13 (f), that an appellant is required to include in the record of appeal, the judgment, order or decree appealed from. The use of the word “or” is indicative of a disjunctive intent of the requirement. As such, for purposes of an appeal, the filing of the judgment or order or decree is sufficient.
30. It must also be noted that the proviso in the definition of decree includes a judgment. The proviso goes on to provide that a judgment shall be appealable regardless of whether a decree has been drawn up, or is capable of being drawn up or not. This appeal is therefore competent because the certified judgment has been included in the record of appeal.
31. The second issue for determination is whether this appeal lies within the prescription of Section 38 of the SCC Act. Appeals from the SCC are governed by the provisions of Section 38 of the Small Claims Act which provides as follows:
38. Appeals
(1) 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.
(2) An appeal from any decision or order referred to in subsection (1) shall be final.
32. Black’s Law Dictionary defines matters of fact and matters of law as: -
“Matter of fact: A matter involving a judicial inquiry into the truth of alleged facts and Matter of law: A matter involving a judicial inquiry into the applicable law.”
33. The Supreme Court has binding precedent on what constitutes appeals on matters of law only. In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Petition 2B of 2014 [2014] eKLR, the Court in paragraph 80 delivered itself as follows:
“From the foregoing review of the comparative judicial experience, we would characterize the three elements of the phrase “matters of law” as follows:
(a)the technical element: involving the interpretation of a constitutional or statutory provision;
(b)the practical element: involving the application of the Constitution and the law to a set of facts or evidence on record;
(c)the evidentiary element: involving the evaluation of the conclusions of a trial Court on the basis of the evidence on record.
The court went on to explain at paragraph 81 (c):
“the conclusions arrived at by the trial Judge in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of County Governor, where the appellant claims that such conclusions were based on “no evidence”, or that the conclusions were not supported by the established facts or evidence on record, or that the conclusions were “so perverse”, or so illegal, that no reasonable tribunal would arrive at the same; it is not enough for the appellant to contend that the trial Judge would probably have arrived at a different conclusion on the basis of the evidence.
The court went on at paragraph 81A:
81A.It is for the appellate Court to determine whether the petition and memorandum of appeal lodged before it by the appellant conform to the foregoing principles, before admitting the same for hearing and determination.
82.Flowing from these guiding principles, it follows that a petition which requires the appellate Court to re-examine the probative value of the evidence tendered at the trial Court, or invites the Court to calibrate any such evidence, especially calling into question the credibility of witnesses, ought not to be admitted. We believe that these principles strike a balance between the need for an appellate Court to proceed from a position of deference to the trial Judge and the trial record, on the one hand, and the trial Judge’s commitment to the highest standards of knowledge, technical competence, and probity in electoral-dispute adjudication, on the other hand.
34. In Mwita v Woodventure (K) Limited & another (Civil Appeal 58 of 2017) [2022] KECA 628 (KLR) (8 July 2022) (Judgment), the Court of Appeal at paragraph 12 stated:
“This is a second appeal. Accordingly, the jurisdiction of this Court is limited to consideration of matters of law. As was held in the case of Stanley N. Muriithi & Another v Bernard Munene Ithiga [2016] eKLR, on a second appeal, the Court confines itself to matters of law only, unless it is shown that the court below considered matters it should not have considered, or failed to consider matters it should have considered, or looking at the entire decision, it is perverse. See also Kenya Breweries Limited v Godfrey Odoyo [2010] eKLR in which it was held that: “In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.”
35. The High Court in Wachira v Mwai (Civil Appeal E022 of 2023) [2024] KEHC 3173 (KLR) (15 March 2024) sitting on appeal on a SCC matter, held that at paragraph 4:
“The jurisdiction of the Small Claims Court is set out in the Small Claims Court Act. Ipso facto, there is only one chance of Appeal to this court. It is an Appeal on points of law.”
36. Guided by the foregoing, I have carefully considered the Memorandum of Appeal as framed. I find that all the grounds of appeal save for ground 2, relate primarily to questions of fact rather than questions of law. In those grounds, the appellant essentially asks this court to review and re-evaluate the evidence presented at the trial court. This constitutes a question of fact. Put differently, the appellant is inviting this court to re-examine the probative value of the evidence tendered at the trial Court, and to recalibrate it. I am prohibited from doing so because the aforestated grounds concern factual issues, not legal ones. Consequently, they do not qualify as grounds that can be determined on appeal. I therefore dismiss these grounds in limine.
37. Ground 2, however, despite its framing, raises a question of law. The appellant contends that the trial court erred by failing to find that the burden of proving special damages lay with the respondent. The issue for this court therefore is whether the trial court properly applied the law on burden of proof to the evidence and facts on record.
38. The legal burden of proof as provided for under Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that; “(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
39. In addition, the evidential burden of proof is captured under Sections 109 and 112 of the Evidence Act, as follows:
“109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.
………
112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him”.
40. A perusal of the trial court judgment shows that the trial magistrate considered the respondent’s evidence including photographs showing the damage caused, and a list of inventories tabulating the items damaged and their cost. The adjudicator noted that the appellant did not object to the photographs and that no evidence was presented to dispute or rebut the inventory of damaged items as produced. In my considered view, and in light of the provisions of the Evidence Act as outlined, the trial court correctly placed the burden of proving special damages on the respondent and found that the burden had been discharged.
41. The upshot is that I find no reason to interfere with the trial court judgment. Accordingly, this appeal fails and is dismissed with costs assessed at kshs 35,000/-.
It is so ordered.
Delivered, Dated and Signed this 26th day of January 2026
FOR APPELLANT:
FOR RESPONDENT:
COURT ASSISTANT:
Background
1. The appellant seeks to overturn the decision rendered in the Small Claims Court (SCC) No. E155 of 2022 in which the trial court awarded the respondent special damages of Ksh 891,600.
2. The genesis of this case is a Statement of Claim dated 4th May 2022, filed by the respondent herein at the SCC. The respondent allege that on 29th January 2022, the appellant’s, motor vehicle registration number KCU 024R/ZG0573 was so negligently driven by the appellant’s driver. As a result, the vehicle veered off road and rammed into assorted concrete posts, other concrete materials and materials at the respondent’s site, causing damage valued at a total of KShs.950,500. The respondent further claimed to have incurred Kshs.1,100 in obtaining the motor vehicle copy of records bringing the total claim to KShs.951,600. He therefore sought judgment against the appellant for this amount, together with interest at court rates from 29th January 2022, and costs of the claim.
3. In a Statement of defence dated 2oth May 2022, the appellant denied the claim in its entirety and put the respondent to strict proof.Without prejudice, the appellant contended that if the said accident did occur, it was solely caused or substantially contributed to by the respondent’s negligence. the appellant further argued that the cause of action was founded on an illegality as the respondent was allegedly operating an unauthorized and illegal kiosk and/or grocery shed by the road side.
4. Upon hearing both parties, the trial court in its judgment dated 4th August 2022. The court identified two issues for determination namely liability and quantum.
5. On liability, the adjudicator found the appellant 100% liable for the accident and resulting damages to the respondent’s properties.
On quantum, the trial court held that the respondent had pleaded and proved special damages of Ksh 891, 600 which it awarded. The trial court also awarded costs of the suit and interest.
The appeal
6. This decision has triggered the appeal before me. The appellant filed this appeal vide the Memorandum of Appeal dated 24th August 2022 on nine (9) grounds reproduced verbatim as follows. That-:
(1) The learned Adjudicator erred in law and in fact in awarding special damages to the respondent despite lack of strict provenance of material loss to warrant award of special damages.
(2) The learned Adjudicator erred in law and in fact by failing to appreciate that the burden of proof of special damages strictly rests with the Respondent herein, the Claimant in Machakos SCC Civil Suit No. E155 of 2022.
(3) The learned Adjudicator erred in law and in fact by failing to appreciate that the claim for special damages was not strictly proved to the required standard in civil cases.
(4) The learned Adjudicator erred and misdirected herself in awarding special damages to a tune of Kshs. 891,600.00 in the absence of an expert report on the extent of material loss occasioned.
(5) The learned Adjudicator erred and misdirected herself in awarding special damages anchored on the handwritten purported inventory by the Respondent despite lack of the requisite expert report on the extent of material loss.
(6) The learned Adjudicator erred and misdirected herself in shifting the burden of proof to the Appellant to disprove the handwritten purported inventory by the Respondent contrary to the provisions of section 107 and 109 of the Evidence Act that requires that who alleges has to prove.
(7) The learned Adjudicator erred in law and in fact in failing to consider and take into account the authorities placed before her touching on pertinent and substantial points of law and facts so as to arrive at a just and fair decision.
(8) The Learned Adjudicator erred in fact and in law in failing to consider the submissions by the Appellant on the issue of strict provenance of special damages consequently leading to an erroneous decision.
(9) Such other, further, additional and/or incidental grounds as may emerge or be canvassed at the Hearing of this Appeal.
7. Consequently, the appellant prays that the judgment issued and delivered on 4th August 2022 be set aside and substituted with an order dismissing Machakos SCC Civil Suit No. E155 of 2022 for want of proof and for costs of the appeal.
8. The appeal was canvassed by way of written submissions. The appellant filed two sets of written submissions dated 31st July 2024 and 30th September 2024 in support of the appeal. The respondent in rebuttal filed written submissions dated 20th January 2025. A summary of these submissions are provided below.
Appellant’s submissions
9. The appellant submits that it is a well-established legal principle that special damages must be specifically pleaded and strictly proved. To support this submission, reliance is placed on the Court of Appeal decision in Douglas Odhiambo Apel & another v Telkom Kenya Limited [2014] eKLR.
10. It is argued that the respondent failed to sufficiently substantiate this claim for material damage to the requisite legal standard. the appellant contends that the burden of proof for special damages, as consistently affirmed in numerous court precedents, requires that such damages be both pleaded and proved beyond reasonable doubt. In this regard, the appellant cites Charles Mutachwa & 2 others v Phares Njenga Kibaki [2021] eKLR.
11. The appellant further submits that the inventory of damages was compiled solely by the respondent, who is the yard owner, and not a certified expert in loss assessment but a civil servant. It is urged that the respondent further demonstrated that he did not present any assessment reports or receipts to substantiate the value or purchase of the items in his yard. It is therefore contended that applying the stringent proof requirement, the trial court had no proper basis to support the respondent claim for material damage. The appellant relies on Bonham Carter -vs- Hyde Park Ltd [1948]64 TLR 177 as quoted in Benedeta Wanjiku Kimani -vs- Changwon Cheboi & Another [2013] eKLR to reinforce this position.
12. The appellant also submit that the respondent has failed to prove that the appellant was responsible for the accident. It is noted that the Police Abstract dated 2nd February 2022 indicated that the respondent was not present at the scene, and it did not identify the vehicle involved.
13. It is the appellant’s case that the respondent did not adduce evidence to establish negligence on the part of the appellant, nor to show that such negligence caused damage to the respondent’s yard. The appellant relies on Nadwa v Kenya Kazi Ltd (1988) eKLR to buttress this contention. The appellant asserts that the evidence presented by the respondent was largely circumstantial and insufficient to establish liability.
14. It is further contended that the respondent's property, where the alleged accident occurred, was constructed on or had encroached upon a road reserve, which goes against the clear provisions of the Kenya Roads Act, No. 2 of 2007. The appellant therefore argues that the construction was unauthorized and illegal.
15. Finally, the appellant submits that the respondent is only entitled to special damages that were both pleaded and proved by way of receipts. The respondent pleaded and proved special damages of Kshs. 550 for a motor vehicle search certificate and the appellant urges this court to award this amount to the respondent.
Respondent’s submissions
16. The respondent submits that the issues for determination in this appeal are whether or not the appeal herein is tenable in law; whether the findings of the learned trial adjudicator were well founded or whether the learned trial adjudicator misapprehended the law and thereby reached wrong conclusions; and who should bear the costs.
17. On the first issue, it is submitted that the Record of Appeal as filed by the appellant is incomplete for the reason that the same lacks the certified decree being appealed against contrary to this court’s orders on 4th March 2020 and Order 42 Rule 13(4) (f).
18. The respondent relies on the decision of the court in Kilonzo David t/a Silver Bullet Bus Company v. Kyalo Kiliku (2018) eKLR where the Honourable court took the firm view that omission to include the decree or order to be appeal from record of appeal was not a procedural technicality. It is therefore submitted that the appeal before this court is incurably defective and otiose.
19. The respondent further submits that the appellate court should only interfere with the trial court’s finding of facts if it is shown that the trial court failed to take into account the circumstances of the case and the probabilitiesarising therefrom. It is argued that this is not the case in the instant matter.
20. On the issue of quantum of damages, the respondent relies on the decision in Delta Haulage Services Ltd Vs. Complast Industrial Ltd and another (2015) eKLR where the court referred to the holding of the court of Appeal in Nkunene Dairy Farmers Cooperative Society Ltd & Anor v. Ngacha Ndieya (2010) eKLR.
21. The respondent also submits that he is a competent assessor as envisioned under Rule 5(2) (a) and (c) of the Small Claims Court Rules, 2019.
22. In conclusion the respondent urges this court to dismiss this appeal with costs to the respondent.
Analysis and determination
23. I have considered the grounds of appeal, examined the record of appeal and reviewed the parties’ submissions. The first issue for determination is whether the absence of a decree renders this appeal incompetent. The respondent contends that the Record of Appeal as filed by the Appellant is incomplete as it does not contain the certified decree being appealed against, contrary to the requirements of Order 42 rule 2 of the Civil Procedure Rules.
24. Rule 30 of the Small Claims Court rules provides:
30. Appeals
A person aggrieved by the judgment or order of the Court may, pursuant to section 38 of the Act, appeal to the High Court in accordance with Order 42 of the Civil Procedure Rules.
25. Before interrogating the Order 42 of the Civil Procedure Rules, I note that the Civil Procedure Act in section 2 defines a decree as:
"decree" means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final; it includes the striking out of a plaint and the determination of any question within section 34 or section 91, but does not include—
(a)any adjudication from which an appeal lies as an appeal from an order; or
(b)any order of dismissal for default:
Provided that, for the purposes of appeal, "decree" includes judgment, and a judgment shall be appealable notwithstanding the fact that a formal decree in pursuance of such judgment may not have been drawn up or may not be capable of being drawn up;
Explanation. — A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.”
26. Order 42 Rule 2 allows an appellant to file a decree where they have not done so. It provides:
“Filing of decree or order [Order 42, rule 2]
Where no certified copy of the decree or order appealed against is filed with the memorandum of appeal, the appellant shall file such certified copy as soon as possible and in any event within such time as the court may order, and the court need not consider whether to reject the appeal summarily under section 79B of the Act until such certified copy is filed”
27. Failure to file a decree can therefore be cured under this section thus it is not a fatal technicality.
28. In addition, Order 42 Rule 13 of the Civil Procedure Rules further stipulates the documents that must be on record before an appeal is admitted to hearing. Rule (13) (f) specifically provides:
“Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record, and that such of them as are not in the possession of either party have been served on that party, that is to say—
…..(f)the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal.”
29. It is evident therefore from Order 42 Rule 13 (f), that an appellant is required to include in the record of appeal, the judgment, order or decree appealed from. The use of the word “or” is indicative of a disjunctive intent of the requirement. As such, for purposes of an appeal, the filing of the judgment or order or decree is sufficient.
30. It must also be noted that the proviso in the definition of decree includes a judgment. The proviso goes on to provide that a judgment shall be appealable regardless of whether a decree has been drawn up, or is capable of being drawn up or not. This appeal is therefore competent because the certified judgment has been included in the record of appeal.
31. The second issue for determination is whether this appeal lies within the prescription of Section 38 of the SCC Act. Appeals from the SCC are governed by the provisions of Section 38 of the Small Claims Act which provides as follows:
38. Appeals
(1) 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.
(2) An appeal from any decision or order referred to in subsection (1) shall be final.
32. Black’s Law Dictionary defines matters of fact and matters of law as: -
“Matter of fact: A matter involving a judicial inquiry into the truth of alleged facts and Matter of law: A matter involving a judicial inquiry into the applicable law.”
33. The Supreme Court has binding precedent on what constitutes appeals on matters of law only. In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Petition 2B of 2014 [2014] eKLR, the Court in paragraph 80 delivered itself as follows:
“From the foregoing review of the comparative judicial experience, we would characterize the three elements of the phrase “matters of law” as follows:
(a)the technical element: involving the interpretation of a constitutional or statutory provision;
(b)the practical element: involving the application of the Constitution and the law to a set of facts or evidence on record;
(c)the evidentiary element: involving the evaluation of the conclusions of a trial Court on the basis of the evidence on record.
The court went on to explain at paragraph 81 (c):
“the conclusions arrived at by the trial Judge in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of County Governor, where the appellant claims that such conclusions were based on “no evidence”, or that the conclusions were not supported by the established facts or evidence on record, or that the conclusions were “so perverse”, or so illegal, that no reasonable tribunal would arrive at the same; it is not enough for the appellant to contend that the trial Judge would probably have arrived at a different conclusion on the basis of the evidence.
The court went on at paragraph 81A:
81A.It is for the appellate Court to determine whether the petition and memorandum of appeal lodged before it by the appellant conform to the foregoing principles, before admitting the same for hearing and determination.
82.Flowing from these guiding principles, it follows that a petition which requires the appellate Court to re-examine the probative value of the evidence tendered at the trial Court, or invites the Court to calibrate any such evidence, especially calling into question the credibility of witnesses, ought not to be admitted. We believe that these principles strike a balance between the need for an appellate Court to proceed from a position of deference to the trial Judge and the trial record, on the one hand, and the trial Judge’s commitment to the highest standards of knowledge, technical competence, and probity in electoral-dispute adjudication, on the other hand.
34. In Mwita v Woodventure (K) Limited & another (Civil Appeal 58 of 2017) [2022] KECA 628 (KLR) (8 July 2022) (Judgment), the Court of Appeal at paragraph 12 stated:
“This is a second appeal. Accordingly, the jurisdiction of this Court is limited to consideration of matters of law. As was held in the case of Stanley N. Muriithi & Another v Bernard Munene Ithiga [2016] eKLR, on a second appeal, the Court confines itself to matters of law only, unless it is shown that the court below considered matters it should not have considered, or failed to consider matters it should have considered, or looking at the entire decision, it is perverse. See also Kenya Breweries Limited v Godfrey Odoyo [2010] eKLR in which it was held that: “In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.”
35. The High Court in Wachira v Mwai (Civil Appeal E022 of 2023) [2024] KEHC 3173 (KLR) (15 March 2024) sitting on appeal on a SCC matter, held that at paragraph 4:
“The jurisdiction of the Small Claims Court is set out in the Small Claims Court Act. Ipso facto, there is only one chance of Appeal to this court. It is an Appeal on points of law.”
36. Guided by the foregoing, I have carefully considered the Memorandum of Appeal as framed. I find that all the grounds of appeal save for ground 2, relate primarily to questions of fact rather than questions of law. In those grounds, the appellant essentially asks this court to review and re-evaluate the evidence presented at the trial court. This constitutes a question of fact. Put differently, the appellant is inviting this court to re-examine the probative value of the evidence tendered at the trial Court, and to recalibrate it. I am prohibited from doing so because the aforestated grounds concern factual issues, not legal ones. Consequently, they do not qualify as grounds that can be determined on appeal. I therefore dismiss these grounds in limine.
37. Ground 2, however, despite its framing, raises a question of law. The appellant contends that the trial court erred by failing to find that the burden of proving special damages lay with the respondent. The issue for this court therefore is whether the trial court properly applied the law on burden of proof to the evidence and facts on record.
38. The legal burden of proof as provided for under Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that; “(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
39. In addition, the evidential burden of proof is captured under Sections 109 and 112 of the Evidence Act, as follows:
“109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.
………
112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him”.
40. A perusal of the trial court judgment shows that the trial magistrate considered the respondent’s evidence including photographs showing the damage caused, and a list of inventories tabulating the items damaged and their cost. The adjudicator noted that the appellant did not object to the photographs and that no evidence was presented to dispute or rebut the inventory of damaged items as produced. In my considered view, and in light of the provisions of the Evidence Act as outlined, the trial court correctly placed the burden of proving special damages on the respondent and found that the burden had been discharged.
41. The upshot is that I find no reason to interfere with the trial court judgment. Accordingly, this appeal fails and is dismissed with costs assessed at kshs 35,000/-.
It is so ordered.
Delivered, Dated and Signed this 26th day of January 2026
FOR APPELLANT:
FOR RESPONDENT:
COURT ASSISTANT: