(Being an appeal against the judgment and decree of Hon. J. W. Munene Adjudicator, delivered on 24th August 2022 in Milimani SCC Claim No. E1391 of 2022)
Background
1. This appeal through the memorandum dated 26th September 2022 arises from a judgment of the Small Claims Court (SCC) delivered on 24th August 2022. The judgment was in respect of a claim at the SCC dated 20th May 2022 by the respondent herein Raphael Omondi Pundo (claimant in the SCC) against the appellants Nairobi Java House Ltd and Francis Odiwuor Ombwa (respondents in the SCC) for compensation for material damage caused to the respondent’s motor vehicle registration number KCC 535T following a road traffic accident involving the respondent’s said motor vehicle and the appellants’ motor vehicle registration number KCS 034Z owned by the 1st appellant and being driven by the 2nd appellant at the material time. The accident occurred on 20th June 2019 during morning hours at the junction of Valley road and Statehouse road within Nairobi County.
The case before the Small Claims Court
2. The parties filed and relied on their respective witness statements and documents to support their cases. Each of the drivers of the two vehicles gave evidence of the circumstances of how the accident occurred. The appellants called one more witness, PW 2 PC Lucas Eseken who produced a police abstract that was completed following the accident.
3. The brief facts of the case as presented before the SCC are that the respondent was driving his said motor vehicle, a Range Rover Sport (according to the respondent, he was driving down Valley road but according to the 2nd appellant, the respondent had entered Valley road but appearing to have turned right into Valley road from a feeder road emerging from Community or Milimani Law courts direction) while the 2nd appellant was driving his motor vehicle, a lorry entering Statehouse road having taken a right turn at the junction of Valley road and Statehouse road when the respondent’s vehicle rammed into the lorry.
4. According to the respondent, he rammed into the side of the lorry because the lorry entered the junction without indicating. Valley road is a dual carriageway and so the lorry had come from one side of the carriageway and was crossing the other carriageway into Statehouse road which a feeder road. On his part the 1st appellant said that the respondent’s car rammed the rear end of the lorry. He said that he had entered the junction when it was clear and he was successfully exiting when he heard a bang from the rear and a vibration. He stopped, alighted and on checking he saw the respondent’s vehicle had rammed into the lorry. The car was damaged on the left front side including the left head lights and part of the bonnet. The lorry on the other hand had minimal damage, a minor misalignment of the lower side of the lorry’s rear ladder.
5. PW 2 PC Lucas Eseken produced a police abstract that was completed following the accident. He gave evidence that the lorry was hit on the left wing. He also said that when one is turning it is his responsibility to give way. He also said that the 2nd respondent recorded his statement with the investigating officer, an indication that PW 2 was not the investigating officer.
6. Upon considering the material before her, the learned Adjudicator found that the respondent had proved his claim against the appellants. She found the appellants wholly liable for the accident. She entered judgment for the respondent against the appellants in the sum of KShs 725,865/= with cost and interest.
Grounds of appeal
7. The appellants were dissatisfied with the learned Adjudicator’s decision and now appeal to this court on the following grounds:
a. The learned Magistrate (sic) misdirected herself by determining the case on the basis of facts that were different from those pleaded by both parties to the case.
b. The learned Magistrate (sic) misdirected herself by failing to consider the evidence produced and submissions made by the respondent (sic).
c. The learned Magistrate (sic) misdirected herself by failing to evaluate the evidence on record.
d. The learned Magistrate (sic) misdirected herself by disregarding the legal burden of proof in civil cases.
e. The learned Magistrate (sic) misdirected herself by disregarding the principle of res ipsa loquitor.
f. The learned Magistrate (sic) erred in law in finding that the respondent was entitled to damages in total disregard of the evidence on record and the respondent having not proved his case on a balance of probabilities.
8. The appellants therefore pray that the appeal be allowed and the judgment of the learned trial Adjudicator be set aside and substituted with an order dismissing the claim and that the appellants be awarded costs with interest.
Submissions
9. The appeal was canvassed by way of written submissions filed by learned counsels for both parties. The same are considered in the analysis that follows.
10. The appellant has set out the following issues for the court’s determination:
a. Whether the trial court erred in law and in fact in apportioning liability at 100% against the appellants.
b. Whether the trial court erred in law and in fact in awarding damages of KShs 725,865/= as compensation for loss and damage suffered by the respondent.
c. Who bears the costs of the appeal.
11. The respondents on their part raised the following issues for determination:
a. Whether the judgment delivered on 24th August, 2022 relied on the evidence adduced by parties to the suit;
b. Whether the court considered the legal burden of proof in civil cases in arriving at its judgment delivered on 24th August, 2022;
c. Whether the doctrine of res ipsa loquitor is applicable in this case;
d. Whether the respondent is entitled to damages;
e. Who is entitled to costs of the appeal.
12. I have considered the grounds of appeal raised in the memorandum of appeal, the record of appeal and the submissions by learned counsels for the parties. The issues for determination by both parties are common and the court will consider and determine them at once.
Analysis
13. As a preliminary issue for guidance to learned counsel for the appellant, he may wish to note that the SCC is presided over by an Adjudicator and not a magistrate because he keeps adverting to the learned “magistrate” in his grounds of appeal and submissions. It is important to bear in mind seemingly little but foundational provisions of the Small Claims Court Act (Cap. 10A) Laws of Kenya (SCCA) in order to appreciate and always have at the back of the mind the spirit behind the establishment of this very distinguished court. Distinguished because it has revolutionized determination of cases at the lower tier level with expedition. So that its foundational characteristics need to be adhered to all the time. Otherwise, it may get meshed up with the operations of the magistrates’ court and there it loses meaning as a different court altogether.
14. In the Kenyan context, an Adjudicator is indeed a magistrate. However, while presiding over the SCC she removes the robes of a magistrate and wears the ordinary garment of an Adjudicator who in my thinking, in the spirit of the SCCA, should come down to the level of the ordinary person on the streets to determine the claims presented before her by the parties. The reasons are that the SCC is designed to be simple, that is, without the strictures of formal procedure and strict evidentiary rules, fast and accessible. These reasons will come out clearer in the analysis and determination of this appeal. So, the operations of the SCC must be distinguished from those of the magistrate’s court.
15. First, the SCCA is a self-governing statute in terms of procedural law. It provides in its long title that it is “an Act of Parliament to establish Small Claims Court; to provide for the jurisdiction and procedures of the Court and for connected purposes.” Under the court’s guiding principles, section 3(3)(c) and (d) enjoin the court to adopt such procedures as the Court deems appropriate to ensure (c)fairness of process; and (d)simplicity of procedure. Under section 17 of the Act the court is granted the discretion to control its own procedure in conformity with the Act in the determination of claims before it. In the exercise of that discretion, the Court is obliged to have regard to the principles of natural justice. For me, these provisions are an indication that the court will only borrow from other procedural laws where it is expressly provided for under the Act.
16. An appeal to this court from the SCC is on points of law only as provided for under section 38 of the SCC Act. So, the first issue for this court to consider is whether the grounds of appeal raised by the appellant are on points of law only. The submissions by both learned counsels take the form of submissions before the magistrates’ court, urging this court to analyze and reassess the evidence on record and reach its own findings as is required under section 78 of the Civil Procedure Act (Cap. 21) Laws of Kenya. That is misplaced. From the provisions of the Act, it follows that this court cannot proceed with the case by way of a rehearing and re-evaluation of evidence as is the norm in other civil matters as provided for under the Civil Procedure Act and Rules which have limited application in proceedings before the SCC.
17. For instance, learned counsel for the appellant has referred this court to the case of Oluoch Eric Gogo v Universal Corporation Limited [2015] KEHC 4850 (KLR) in which the case of Selle & another vs Associated Motor Boat Co. Ltd & another (1968) EA 123 is cited for the holding that the duty of a first appellate court is to evaluate and re-examine the evidence adduced in the trial court in order to reach a finding, taking into account the fact that the appellate court had no opportunity of hearing or seeing the parties as they testified and therefore, make an allowance in that respect. Although this is a first appellate court for the SCC, its appellate jurisdiction is limited to issues of law only.
18. Therefore learned counsels for the parties would do well to refer and be guided by the Court of Appeal’s observation in the case of Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR) that:
“Those points in an appeal of the kind before us, being from an election court’s decision, are further circumscribed by Section 85A of the Elections Act which limits appeals to the Court of Appeal to matters of law only. It is therefore quite strange and improper that each of the seventeen grounds, without exception, commences with a standard expression “the judge erred in fact and law” or “the learned Judge erred in law and in fact.” Clearly the drafters of the memorandum did not have the legal provision in active contemplation. Had they done so, they would have found that by invoking factual errors, they were inviting jurisdictional objections to their entire appeal.”
19. It follows from this decision that an appeal to this court from the SCC being on points of law only as provided for under section 38 of the SCC Act this court should not interfere with the findings of fact by the trial court unless the decision is bad in law and cannot be supported by the evidence tendered. On that issue the Court of Appeal in M’Riungu v. Republic [1983] KLR 455, held thus:
“where a right of appeal is confined to question of law, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of fact and law and it should not interfere with the decision of the trial court or the first appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law”.
20. The appellate court may however interfere with the findings of the trial court where it is demonstrated that there was no evidence at all upon which such findings were based or that the evidence relied upon was of such a nature that no reasonable tribunal, properly addressing its mind on it, could have made such findings (see for instance Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others [2014] eKLR).
21. In my understanding of the Small Claims Court Act (Cap. 10A) Laws of Kenya (SCC Act), a claim under the Act is a small meaning, it is not just limited in the name or the monetary value or as well as other jurisdiction of the court but also small or limited in terms of the procedures of lodging and prosecuting it, in terms of evidence required to prove it and the flexible evaluation of the same by the court, the limited timelines for the hearing and determination, and in terms of the brevity of the court’s decision on the claim. The disputes are therefore meant to be determined in a simple way almost informally and expeditiously as per the SCC Act. So, when a party subjects its claim before this court, let it be prepared to abide by the constitutive elements of this court which guide hearing and disposal of claims.
22. These elements are for instance as outlined under section 3(3) of the Act where it is provided that the Court shall adopt such procedures as the Court deems appropriate to ensure inter alia the timely disposal of all proceedings before the Court using the least expensive method and simplicity of procedure.
23. Moreover, under Section 32 of the Act the strict evidentiary rules applicable in other courts are not wholly applied in the Small Claims Court. It is further provided that the Court may admit as evidence any oral or written testimony, record, or other material even though the same is not admissible as evidence in any other Court under the law of evidence (Emphasis and underlying supplied).
24. Considering these elements of the SCC it would appear to me that the manner of proof of a claim in a SCC is that of a reasonable person as per the appreciation of the material tendered to the Adjudicator who is seized of the matter properly applying her mind to the law and facts of the case having observed the rules of natural justice as provided for under the Act and not being held captive by the strictures of the magistrates’ court processes as laid down in the Civil Procedure Act (Cap. 21) Laws of Kenya and the Rules made thereunder and the Law of Evidence Act (Cap. 80) Laws of Kenya.
25. This is because the SCC Act exempts the court proceedings from the rigid application of the standards of evidence applicable in other court proceedings and permits the court to include as evidence any material that it deems credible or trustworthy. It is upon the Adjudicator to determine the material to rely upon. To this end, the method and style of the SCC has been referred to as “unceremonious” by Bruce Zucker and Monica Her in their seminal paper “The People's Court Examined: A Legal and Empirical Analysis of the Small Claims Court System.” It is a court bereft of procedural technicalities. Thus, the case before a SCC is a claim and not a suit.
26. In that regard, it is my thinking that broadly a claim before the SCC would largely proceed by way of negotiation for settlement rather than a trial. The SCC would be the place where ADR taking the form of negotiation would be the primary mode of disposal of the disputes. Considering the constitutive elements of the SCC as provided for under the Act, a hearing would be resorted to only on very limited issues where parties have failed or are taking long to reach a settlement through negotiations.
27. For instance, in cases of negligence, there are many instances where parties have an agreement on apportionment of liability. In road traffic accident cases, the remaining issue would be the assessment of damages. If that is the point at which parties bring their claim to the SCC or where the SCC has guided the parties through a negotiated settlement on liability and the parties do not seem to agree on damages, it is easy for the court to consider the medical reports presented, then using a template on comparable injuries it can there and then point out to the parties the range of general damages that it is likely to award if they are not settling. Where there is only one medical report it is easy then for the court to base its award on the extent of injuries as per the report. Where there are two or more reports with markedly deferring findings by the doctors, the SCC will point out the contentious issue within the report and then probably ask the parties to present the doctors for say cross-examination only on the contested issues. Once clarity is found from the expert witness, the court can proceed to pronounce its award on general damages at once.
28. In my understanding therefore, the SCC should be a court of settlement rather than a trial court, the Adjudicator’s work being to superintend on the negotiations rather than hold laborious hearings, go through voluminous submissions and come up with “considered judgments” as is expected in the trials before magistrates’ courts. Without appearing to limit the jurisdiction of the SCC as laid out in the Act I believe that matters that go before it should almost be what are termed “plain and obvious” cases that can be dealt with summarily and which do not require technical “evidentiary proof” as is the case in the other trials before magistrates’ courts. There and then, the court will make a finding and issue a decision at once as is provided under section 34(1) and (2) of the Act where decisions are expected to be delivered the same day the hearing is concluded. That is only possible where the court and the parties appreciate and adhere to the constitutive elements of the court under the Act.
29. In such cases, appeals arising therefrom will be properly on points of law for instance, to set aside the settlement on the laid down principles of setting aside an agreement or where rules of natural justice were not observed during the conduct of the proceedings. Thus, appeals to the High Court are only on issues of law and the appeal is final.
30. Otherwise, issues that come for appeal will continue to be blurred as mixed fact and law and since courts are not wont to dismiss cases summarily, many will proceed by way of retrial, rehearing and re-evaluation of evidence even when it is clear that they ought not to and thereby undermine the spirit of this great court which no doubt is a big deal for the judiciary in expeditiously concluding low value cases and reducing backlog.
31. Take for instance the present case. There was full hearing of the case with each party adducing evidence by calling witnesses and producing documentary exhibits. The learned Adjudicator was very brief, in four paragraphs spanning only one and a half pages, she determined the claim finding the appellants 100% liable for the accident and awarding the respondent KShs 725,865/= as damages plus costs and interest. The respondents’ perhaps used to the magistrate’s court procedure find that judgment inadequate. Well, I find it adequate in terms of the brevity. Consideration of the content in terms of issues of law raised by the appellant follows shortly below.
32. There is no requirement for the learned Adjudicator to prepare a lengthy decision under the SCC Act as is the case under the Civil Procedure Rules. Rule 23(4) of the SCC Rules provides that at the end of the hearing, the Court shall prepare a written record of its decision in final determination of the claims before it and (a) pronounce its decision in accordance with section 34(2) of the Act; or (b) send a copy of its written decision to the parties. This is in contrast to Order 21 Rule 4 of the Civil Procedure Rules which provides that “Judgement in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision.” The claim could only be and a determination made as provided for under the SCC Act.
33. The appellant should be advised that in a SCC the Adjudicator has a wide discretion on which material to rely upon in arriving at his or her decision. In doing so, she does not even need to offer any analysis or reasons because that is not provided for in the SCC Act. That in my thinking is why section 34(2) of the Act provides that judgment given in determination of any claim shall be delivered on the same day and in any event, not later than three (3) days from the date of the hearing. It is practically not possible for a court to render a considered decision the same day of the hearing where tens of cases are concluded before that court as in the Small Claims Court.
34. That is why, in my thinking, the spirit behind the SCC should be one of negotiation and settlement and hearings become an exception and even then on very narrow issues that can be disposed of in no more than three days as provided for under the Act. In my thinking, that is why under the Guiding Principles of the Court under section 3(2), the parties and their duly authorized representatives, are directed (shall) to assist the Court to facilitate the observance of the guiding principles set out under the section, to participate in the proceedings of the Court and to comply with directions and orders of that Court (emphasis in bold supplied). The court would be expected to guide the parties and give directions at every turn as the negotiations take place.
35. The negotiations would for example take place on a day to day basis until a settlement is had. In that case, 60 days are sufficient to complete the hearing and determination of the claim. When the negotiations are taking place, the court’s duty would be to ensure that rules of natural justice are adhered to as provided for under section 17 of the Act. In doing so the court will ensure that each party has an equal opportunity to present its case and there is fairness of process as provided for under section 3(b) and (c) of the Act. No doubt, negotiation becomes the least expensive method of disposal of the dispute (section 3(a) SCCA). All these should be done in good faith and openness to amicable settlement of the claim.
36. The point of law that emerges from the appellant’s grounds of appeal is the appellant’s contention that the decision arrived at by the learned Adjudicator was not in tandem with the evidence tendered in the case. In support thereof, learned counsel for the appellant submits that both parties testified that the respondent’s vehicle rammed into the rear end of the appellants’ vehicle. The submission that both parties agreed that the respondent’s vehicle rammed into the appellant’s lorry is true. But that both parties agreed that the point of impact was the rear end of the appellants’ lorry is not correct because the respondent said that he rammed the lorry in the middle left side.
37. It is important to see how the two drivers who were also the eye witnesses to the accident described how it happened and then see whether the decision reached by the learned Adjudicator that the appellants were wholly to blame for the accident was reasonable in the circumstances.
38. In his evidence in chief through the written statement, the respondent said that “I was approaching Valley road...” This statement in itself means he was not on Valley road but was approaching it. He then went on to say that all of a sudden the lorry, coming from town or CBD direction, failed to indicate that it was to turn right into Statehouse road through Valley road. As a result, his vehicle’s front side crashed into the lorry and was damaged on the bonnet, bumper, front headlights, windshield, front grille, badge, jet washers and radiator. He said further that police officers from Kilimani police station investigated the accident and blamed the driver of the lorry. There is however no indication of when the investigations were done, who was interviewed and therefore the basis of the police findings and conclusion.
39. In cross-examination, the respondent said that he was driving at an estimated speed of 15-20 kph. He said he saw the lorry before it turned, approximately some 10 metres away from his vehicle before the impact. That the two vehicles were moving in opposite directions along Valley road with his vehicle heading towards town and the appellants’ heading in the opposite direction. This contrasts with his earlier statement in the recorded statement that he was approaching Valley road.
40. The respondent further said that police officers who were nearby attended to the scene and asked the two drivers to proceed to Kilimani police station. At that point, they did not blame anyone for the accident. They told him to pursue his case with his insurance company. I would think that if indeed the other motor vehicle was to blame, police would have said so at once at the scene. How they later turned around to issue a police abstract blaming the appellants is not explained. The entry in the police abstract could not be relied upon to support the respondent’s case as the learned Adjudicator appears to have done.
41. The 2nd appellant on his part said he was also driving at an average speed of 10-15kph. At the Kenyatta avenue (Valley Road)/Statehouse road junction he turned on the indicator to show that he was turning right to join Statehouse road. He said that the respondent’s motor vehicle hit his lorry at the rear end as he had already entered the junction to cross to Statehouse road. He further said that from the position of the respondent’s vehicle he understood it to mean that it had come from the Community/Milimani Law courts direction and was heading towards the CBD direction. I find this evidence by the 2nd appellant to be consistent with the respondent’s statement that he was “approaching” Valley road. The 2nd respondent also said that the damage suffered by the lorry was very little and this is also consistent with the respondent’s evidence on the damage suffered by the lorry. He also said that there were police officers at the junction who attended to the scene, interrogated the two drivers and asked them to drive their vehicles to Kilimani police station which they did.
42. The 2nd appellant said further that at the police station, when police officers wanted to record their statements, the respondent conceded that he was to blame for the accident and offered to settle the matter without having to involve the police. The police officers agreed with him and left the matter at that. The respondent even offered the 2nd appellant KShs 2,000/= in cash as compensation for the little damage caused to the lorry. According to him, the matter had been settled amicably. This again is consistent with the respondent’s evidence that the police advised him to pursue his case with his insurance. One can only conclude that they did so because they had concluded and he had accepted that he was to blame for the accident. Otherwise one cannot see how the respondent could have agreed to meet the costs of the very serious damage that his vehicle had suffered.
43. Back to the accident scene, it is common knowledge that the appellants’ lorry made a right turn into Statehouse road through Valley road and that the respondent’s vehicle rammed into the appellants’ lorry.
44. The respondent said that the lorry driver failed to indicate but the lorry driver, the 2nd appellant said that he indicated. I have said that the 2nd respondent was a more consistent witness in his evidence and on this issue his evidence was more believable than that of the respondent. The learned Adjudicator did not offer any reason for her preferring to believe and rely on the evidence of the respondent and not that of the 2nd appellant.
45. Further, on the point of impact, from the fact that the appellants’ vehicle suffered minimal damage which the 2nd appellant showed was at the rear and the fact that the respondent’s vehicle suffered very extensive damage on its front part towards the left side, it is more logical to find that the lorry had already entered the junction and was way into crossing to Statehouse road when the collision occurred.
46. Ordinarily, as submitted by learned counsel for the respondent, a vehicle turning right should give way to the vehicle going straight on the main road. However, in this case, I have found that the respondent’s vehicle had approached Valley road from a feeder road and so had turned into Valley road in order to go downwards towards the CBD. The respondent said he saw the lorry at a distance of 10 metres before the impact. I have found that the lorry had indicated that it was turning right. Therefore, considering that the point of impact on the lorry was the very rear end, it means that if the respondent was careful, and paying attention to the presence of the lorry on the road he should have stopped or slowed down to give way to the lorry, which had properly entered Valley road before the his vehicle proceeded on to Valley road. The fact that the lorry was making a right turn cannot mean that it has to be blamed even for drivers who are in themselves not paying attention. It is apparent that the respondent may have been in a hurry and failed to properly estimate the distance and speed of the lorry and hoped that by the time he reached the point the collision occurred, it would have gone past but that was no to be.
47. The respondent’s conduct subsequent to the accident of agreeing to pursue the issue with his insurance company and offering the 2nd appellant KShs 2,000/= for the repair of the minimal damage to the lorry also indicates that he was and accepted that he was at fault.
48. In as much as she was brief in her decision, the learned Adjudicator ought to have made an indication of why she believed the respondents’ evidence and not that of the 2nd appellant. It would appear that it was on the basis of the ind
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Background
1. This appeal through the memorandum dated 26th September 2022 arises from a judgment of the Small Claims Court (SCC) delivered on 24th August 2022. The judgment was in respect of a claim at the SCC dated 20th May 2022 by the respondent herein Raphael Omondi Pundo (claimant in the SCC) against the appellants Nairobi Java House Ltd and Francis Odiwuor Ombwa (respondents in the SCC) for compensation for material damage caused to the respondent’s motor vehicle registration number KCC 535T following a road traffic accident involving the respondent’s said motor vehicle and the appellants’ motor vehicle registration number KCS 034Z owned by the 1st appellant and being driven by the 2nd appellant at the material time. The accident occurred on 20th June 2019 during morning hours at the junction of Valley road and Statehouse road within Nairobi County.
The case before the Small Claims Court
2. The parties filed and relied on their respective witness statements and documents to support their cases. Each of the drivers of the two vehicles gave evidence of the circumstances of how the accident occurred. The appellants called one more witness, PW 2 PC Lucas Eseken who produced a police abstract that was completed following the accident.
3. The brief facts of the case as presented before the SCC are that the respondent was driving his said motor vehicle, a Range Rover Sport (according to the respondent, he was driving down Valley road but according to the 2nd appellant, the respondent had entered Valley road but appearing to have turned right into Valley road from a feeder road emerging from Community or Milimani Law courts direction) while the 2nd appellant was driving his motor vehicle, a lorry entering Statehouse road having taken a right turn at the junction of Valley road and Statehouse road when the respondent’s vehicle rammed into the lorry.
4. According to the respondent, he rammed into the side of the lorry because the lorry entered the junction without indicating. Valley road is a dual carriageway and so the lorry had come from one side of the carriageway and was crossing the other carriageway into Statehouse road which a feeder road. On his part the 1st appellant said that the respondent’s car rammed the rear end of the lorry. He said that he had entered the junction when it was clear and he was successfully exiting when he heard a bang from the rear and a vibration. He stopped, alighted and on checking he saw the respondent’s vehicle had rammed into the lorry. The car was damaged on the left front side including the left head lights and part of the bonnet. The lorry on the other hand had minimal damage, a minor misalignment of the lower side of the lorry’s rear ladder.
5. PW 2 PC Lucas Eseken produced a police abstract that was completed following the accident. He gave evidence that the lorry was hit on the left wing. He also said that when one is turning it is his responsibility to give way. He also said that the 2nd respondent recorded his statement with the investigating officer, an indication that PW 2 was not the investigating officer.
6. Upon considering the material before her, the learned Adjudicator found that the respondent had proved his claim against the appellants. She found the appellants wholly liable for the accident. She entered judgment for the respondent against the appellants in the sum of KShs 725,865/= with cost and interest.
Grounds of appeal
7. The appellants were dissatisfied with the learned Adjudicator’s decision and now appeal to this court on the following grounds:
a. The learned Magistrate (sic) misdirected herself by determining the case on the basis of facts that were different from those pleaded by both parties to the case.
b. The learned Magistrate (sic) misdirected herself by failing to consider the evidence produced and submissions made by the respondent (sic).
c. The learned Magistrate (sic) misdirected herself by failing to evaluate the evidence on record.
d. The learned Magistrate (sic) misdirected herself by disregarding the legal burden of proof in civil cases.
e. The learned Magistrate (sic) misdirected herself by disregarding the principle of res ipsa loquitor.
f. The learned Magistrate (sic) erred in law in finding that the respondent was entitled to damages in total disregard of the evidence on record and the respondent having not proved his case on a balance of probabilities.
8. The appellants therefore pray that the appeal be allowed and the judgment of the learned trial Adjudicator be set aside and substituted with an order dismissing the claim and that the appellants be awarded costs with interest.
Submissions
9. The appeal was canvassed by way of written submissions filed by learned counsels for both parties. The same are considered in the analysis that follows.
10. The appellant has set out the following issues for the court’s determination:
a. Whether the trial court erred in law and in fact in apportioning liability at 100% against the appellants.
b. Whether the trial court erred in law and in fact in awarding damages of KShs 725,865/= as compensation for loss and damage suffered by the respondent.
c. Who bears the costs of the appeal.
11. The respondents on their part raised the following issues for determination:
a. Whether the judgment delivered on 24th August, 2022 relied on the evidence adduced by parties to the suit;
b. Whether the court considered the legal burden of proof in civil cases in arriving at its judgment delivered on 24th August, 2022;
c. Whether the doctrine of res ipsa loquitor is applicable in this case;
d. Whether the respondent is entitled to damages;
e. Who is entitled to costs of the appeal.
12. I have considered the grounds of appeal raised in the memorandum of appeal, the record of appeal and the submissions by learned counsels for the parties. The issues for determination by both parties are common and the court will consider and determine them at once.
Analysis
13. As a preliminary issue for guidance to learned counsel for the appellant, he may wish to note that the SCC is presided over by an Adjudicator and not a magistrate because he keeps adverting to the learned “magistrate” in his grounds of appeal and submissions. It is important to bear in mind seemingly little but foundational provisions of the Small Claims Court Act (Cap. 10A) Laws of Kenya (SCCA) in order to appreciate and always have at the back of the mind the spirit behind the establishment of this very distinguished court. Distinguished because it has revolutionized determination of cases at the lower tier level with expedition. So that its foundational characteristics need to be adhered to all the time. Otherwise, it may get meshed up with the operations of the magistrates’ court and there it loses meaning as a different court altogether.
14. In the Kenyan context, an Adjudicator is indeed a magistrate. However, while presiding over the SCC she removes the robes of a magistrate and wears the ordinary garment of an Adjudicator who in my thinking, in the spirit of the SCCA, should come down to the level of the ordinary person on the streets to determine the claims presented before her by the parties. The reasons are that the SCC is designed to be simple, that is, without the strictures of formal procedure and strict evidentiary rules, fast and accessible. These reasons will come out clearer in the analysis and determination of this appeal. So, the operations of the SCC must be distinguished from those of the magistrate’s court.
15. First, the SCCA is a self-governing statute in terms of procedural law. It provides in its long title that it is “an Act of Parliament to establish Small Claims Court; to provide for the jurisdiction and procedures of the Court and for connected purposes.” Under the court’s guiding principles, section 3(3)(c) and (d) enjoin the court to adopt such procedures as the Court deems appropriate to ensure (c)fairness of process; and (d)simplicity of procedure. Under section 17 of the Act the court is granted the discretion to control its own procedure in conformity with the Act in the determination of claims before it. In the exercise of that discretion, the Court is obliged to have regard to the principles of natural justice. For me, these provisions are an indication that the court will only borrow from other procedural laws where it is expressly provided for under the Act.
16. An appeal to this court from the SCC is on points of law only as provided for under section 38 of the SCC Act. So, the first issue for this court to consider is whether the grounds of appeal raised by the appellant are on points of law only. The submissions by both learned counsels take the form of submissions before the magistrates’ court, urging this court to analyze and reassess the evidence on record and reach its own findings as is required under section 78 of the Civil Procedure Act (Cap. 21) Laws of Kenya. That is misplaced. From the provisions of the Act, it follows that this court cannot proceed with the case by way of a rehearing and re-evaluation of evidence as is the norm in other civil matters as provided for under the Civil Procedure Act and Rules which have limited application in proceedings before the SCC.
17. For instance, learned counsel for the appellant has referred this court to the case of Oluoch Eric Gogo v Universal Corporation Limited [2015] KEHC 4850 (KLR) in which the case of Selle & another vs Associated Motor Boat Co. Ltd & another (1968) EA 123 is cited for the holding that the duty of a first appellate court is to evaluate and re-examine the evidence adduced in the trial court in order to reach a finding, taking into account the fact that the appellate court had no opportunity of hearing or seeing the parties as they testified and therefore, make an allowance in that respect. Although this is a first appellate court for the SCC, its appellate jurisdiction is limited to issues of law only.
18. Therefore learned counsels for the parties would do well to refer and be guided by the Court of Appeal’s observation in the case of Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR) that:
“Those points in an appeal of the kind before us, being from an election court’s decision, are further circumscribed by Section 85A of the Elections Act which limits appeals to the Court of Appeal to matters of law only. It is therefore quite strange and improper that each of the seventeen grounds, without exception, commences with a standard expression “the judge erred in fact and law” or “the learned Judge erred in law and in fact.” Clearly the drafters of the memorandum did not have the legal provision in active contemplation. Had they done so, they would have found that by invoking factual errors, they were inviting jurisdictional objections to their entire appeal.”
19. It follows from this decision that an appeal to this court from the SCC being on points of law only as provided for under section 38 of the SCC Act this court should not interfere with the findings of fact by the trial court unless the decision is bad in law and cannot be supported by the evidence tendered. On that issue the Court of Appeal in M’Riungu v. Republic [1983] KLR 455, held thus:
“where a right of appeal is confined to question of law, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of fact and law and it should not interfere with the decision of the trial court or the first appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law”.
20. The appellate court may however interfere with the findings of the trial court where it is demonstrated that there was no evidence at all upon which such findings were based or that the evidence relied upon was of such a nature that no reasonable tribunal, properly addressing its mind on it, could have made such findings (see for instance Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others [2014] eKLR).
21. In my understanding of the Small Claims Court Act (Cap. 10A) Laws of Kenya (SCC Act), a claim under the Act is a small meaning, it is not just limited in the name or the monetary value or as well as other jurisdiction of the court but also small or limited in terms of the procedures of lodging and prosecuting it, in terms of evidence required to prove it and the flexible evaluation of the same by the court, the limited timelines for the hearing and determination, and in terms of the brevity of the court’s decision on the claim. The disputes are therefore meant to be determined in a simple way almost informally and expeditiously as per the SCC Act. So, when a party subjects its claim before this court, let it be prepared to abide by the constitutive elements of this court which guide hearing and disposal of claims.
22. These elements are for instance as outlined under section 3(3) of the Act where it is provided that the Court shall adopt such procedures as the Court deems appropriate to ensure inter alia the timely disposal of all proceedings before the Court using the least expensive method and simplicity of procedure.
23. Moreover, under Section 32 of the Act the strict evidentiary rules applicable in other courts are not wholly applied in the Small Claims Court. It is further provided that the Court may admit as evidence any oral or written testimony, record, or other material even though the same is not admissible as evidence in any other Court under the law of evidence (Emphasis and underlying supplied).
24. Considering these elements of the SCC it would appear to me that the manner of proof of a claim in a SCC is that of a reasonable person as per the appreciation of the material tendered to the Adjudicator who is seized of the matter properly applying her mind to the law and facts of the case having observed the rules of natural justice as provided for under the Act and not being held captive by the strictures of the magistrates’ court processes as laid down in the Civil Procedure Act (Cap. 21) Laws of Kenya and the Rules made thereunder and the Law of Evidence Act (Cap. 80) Laws of Kenya.
25. This is because the SCC Act exempts the court proceedings from the rigid application of the standards of evidence applicable in other court proceedings and permits the court to include as evidence any material that it deems credible or trustworthy. It is upon the Adjudicator to determine the material to rely upon. To this end, the method and style of the SCC has been referred to as “unceremonious” by Bruce Zucker and Monica Her in their seminal paper “The People's Court Examined: A Legal and Empirical Analysis of the Small Claims Court System.” It is a court bereft of procedural technicalities. Thus, the case before a SCC is a claim and not a suit.
26. In that regard, it is my thinking that broadly a claim before the SCC would largely proceed by way of negotiation for settlement rather than a trial. The SCC would be the place where ADR taking the form of negotiation would be the primary mode of disposal of the disputes. Considering the constitutive elements of the SCC as provided for under the Act, a hearing would be resorted to only on very limited issues where parties have failed or are taking long to reach a settlement through negotiations.
27. For instance, in cases of negligence, there are many instances where parties have an agreement on apportionment of liability. In road traffic accident cases, the remaining issue would be the assessment of damages. If that is the point at which parties bring their claim to the SCC or where the SCC has guided the parties through a negotiated settlement on liability and the parties do not seem to agree on damages, it is easy for the court to consider the medical reports presented, then using a template on comparable injuries it can there and then point out to the parties the range of general damages that it is likely to award if they are not settling. Where there is only one medical report it is easy then for the court to base its award on the extent of injuries as per the report. Where there are two or more reports with markedly deferring findings by the doctors, the SCC will point out the contentious issue within the report and then probably ask the parties to present the doctors for say cross-examination only on the contested issues. Once clarity is found from the expert witness, the court can proceed to pronounce its award on general damages at once.
28. In my understanding therefore, the SCC should be a court of settlement rather than a trial court, the Adjudicator’s work being to superintend on the negotiations rather than hold laborious hearings, go through voluminous submissions and come up with “considered judgments” as is expected in the trials before magistrates’ courts. Without appearing to limit the jurisdiction of the SCC as laid out in the Act I believe that matters that go before it should almost be what are termed “plain and obvious” cases that can be dealt with summarily and which do not require technical “evidentiary proof” as is the case in the other trials before magistrates’ courts. There and then, the court will make a finding and issue a decision at once as is provided under section 34(1) and (2) of the Act where decisions are expected to be delivered the same day the hearing is concluded. That is only possible where the court and the parties appreciate and adhere to the constitutive elements of the court under the Act.
29. In such cases, appeals arising therefrom will be properly on points of law for instance, to set aside the settlement on the laid down principles of setting aside an agreement or where rules of natural justice were not observed during the conduct of the proceedings. Thus, appeals to the High Court are only on issues of law and the appeal is final.
30. Otherwise, issues that come for appeal will continue to be blurred as mixed fact and law and since courts are not wont to dismiss cases summarily, many will proceed by way of retrial, rehearing and re-evaluation of evidence even when it is clear that they ought not to and thereby undermine the spirit of this great court which no doubt is a big deal for the judiciary in expeditiously concluding low value cases and reducing backlog.
31. Take for instance the present case. There was full hearing of the case with each party adducing evidence by calling witnesses and producing documentary exhibits. The learned Adjudicator was very brief, in four paragraphs spanning only one and a half pages, she determined the claim finding the appellants 100% liable for the accident and awarding the respondent KShs 725,865/= as damages plus costs and interest. The respondents’ perhaps used to the magistrate’s court procedure find that judgment inadequate. Well, I find it adequate in terms of the brevity. Consideration of the content in terms of issues of law raised by the appellant follows shortly below.
32. There is no requirement for the learned Adjudicator to prepare a lengthy decision under the SCC Act as is the case under the Civil Procedure Rules. Rule 23(4) of the SCC Rules provides that at the end of the hearing, the Court shall prepare a written record of its decision in final determination of the claims before it and (a) pronounce its decision in accordance with section 34(2) of the Act; or (b) send a copy of its written decision to the parties. This is in contrast to Order 21 Rule 4 of the Civil Procedure Rules which provides that “Judgement in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision.” The claim could only be and a determination made as provided for under the SCC Act.
33. The appellant should be advised that in a SCC the Adjudicator has a wide discretion on which material to rely upon in arriving at his or her decision. In doing so, she does not even need to offer any analysis or reasons because that is not provided for in the SCC Act. That in my thinking is why section 34(2) of the Act provides that judgment given in determination of any claim shall be delivered on the same day and in any event, not later than three (3) days from the date of the hearing. It is practically not possible for a court to render a considered decision the same day of the hearing where tens of cases are concluded before that court as in the Small Claims Court.
34. That is why, in my thinking, the spirit behind the SCC should be one of negotiation and settlement and hearings become an exception and even then on very narrow issues that can be disposed of in no more than three days as provided for under the Act. In my thinking, that is why under the Guiding Principles of the Court under section 3(2), the parties and their duly authorized representatives, are directed (shall) to assist the Court to facilitate the observance of the guiding principles set out under the section, to participate in the proceedings of the Court and to comply with directions and orders of that Court (emphasis in bold supplied). The court would be expected to guide the parties and give directions at every turn as the negotiations take place.
35. The negotiations would for example take place on a day to day basis until a settlement is had. In that case, 60 days are sufficient to complete the hearing and determination of the claim. When the negotiations are taking place, the court’s duty would be to ensure that rules of natural justice are adhered to as provided for under section 17 of the Act. In doing so the court will ensure that each party has an equal opportunity to present its case and there is fairness of process as provided for under section 3(b) and (c) of the Act. No doubt, negotiation becomes the least expensive method of disposal of the dispute (section 3(a) SCCA). All these should be done in good faith and openness to amicable settlement of the claim.
36. The point of law that emerges from the appellant’s grounds of appeal is the appellant’s contention that the decision arrived at by the learned Adjudicator was not in tandem with the evidence tendered in the case. In support thereof, learned counsel for the appellant submits that both parties testified that the respondent’s vehicle rammed into the rear end of the appellants’ vehicle. The submission that both parties agreed that the respondent’s vehicle rammed into the appellant’s lorry is true. But that both parties agreed that the point of impact was the rear end of the appellants’ lorry is not correct because the respondent said that he rammed the lorry in the middle left side.
37. It is important to see how the two drivers who were also the eye witnesses to the accident described how it happened and then see whether the decision reached by the learned Adjudicator that the appellants were wholly to blame for the accident was reasonable in the circumstances.
38. In his evidence in chief through the written statement, the respondent said that “I was approaching Valley road...” This statement in itself means he was not on Valley road but was approaching it. He then went on to say that all of a sudden the lorry, coming from town or CBD direction, failed to indicate that it was to turn right into Statehouse road through Valley road. As a result, his vehicle’s front side crashed into the lorry and was damaged on the bonnet, bumper, front headlights, windshield, front grille, badge, jet washers and radiator. He said further that police officers from Kilimani police station investigated the accident and blamed the driver of the lorry. There is however no indication of when the investigations were done, who was interviewed and therefore the basis of the police findings and conclusion.
39. In cross-examination, the respondent said that he was driving at an estimated speed of 15-20 kph. He said he saw the lorry before it turned, approximately some 10 metres away from his vehicle before the impact. That the two vehicles were moving in opposite directions along Valley road with his vehicle heading towards town and the appellants’ heading in the opposite direction. This contrasts with his earlier statement in the recorded statement that he was approaching Valley road.
40. The respondent further said that police officers who were nearby attended to the scene and asked the two drivers to proceed to Kilimani police station. At that point, they did not blame anyone for the accident. They told him to pursue his case with his insurance company. I would think that if indeed the other motor vehicle was to blame, police would have said so at once at the scene. How they later turned around to issue a police abstract blaming the appellants is not explained. The entry in the police abstract could not be relied upon to support the respondent’s case as the learned Adjudicator appears to have done.
41. The 2nd appellant on his part said he was also driving at an average speed of 10-15kph. At the Kenyatta avenue (Valley Road)/Statehouse road junction he turned on the indicator to show that he was turning right to join Statehouse road. He said that the respondent’s motor vehicle hit his lorry at the rear end as he had already entered the junction to cross to Statehouse road. He further said that from the position of the respondent’s vehicle he understood it to mean that it had come from the Community/Milimani Law courts direction and was heading towards the CBD direction. I find this evidence by the 2nd appellant to be consistent with the respondent’s statement that he was “approaching” Valley road. The 2nd respondent also said that the damage suffered by the lorry was very little and this is also consistent with the respondent’s evidence on the damage suffered by the lorry. He also said that there were police officers at the junction who attended to the scene, interrogated the two drivers and asked them to drive their vehicles to Kilimani police station which they did.
42. The 2nd appellant said further that at the police station, when police officers wanted to record their statements, the respondent conceded that he was to blame for the accident and offered to settle the matter without having to involve the police. The police officers agreed with him and left the matter at that. The respondent even offered the 2nd appellant KShs 2,000/= in cash as compensation for the little damage caused to the lorry. According to him, the matter had been settled amicably. This again is consistent with the respondent’s evidence that the police advised him to pursue his case with his insurance. One can only conclude that they did so because they had concluded and he had accepted that he was to blame for the accident. Otherwise one cannot see how the respondent could have agreed to meet the costs of the very serious damage that his vehicle had suffered.
43. Back to the accident scene, it is common knowledge that the appellants’ lorry made a right turn into Statehouse road through Valley road and that the respondent’s vehicle rammed into the appellants’ lorry.
44. The respondent said that the lorry driver failed to indicate but the lorry driver, the 2nd appellant said that he indicated. I have said that the 2nd respondent was a more consistent witness in his evidence and on this issue his evidence was more believable than that of the respondent. The learned Adjudicator did not offer any reason for her preferring to believe and rely on the evidence of the respondent and not that of the 2nd appellant.
45. Further, on the point of impact, from the fact that the appellants’ vehicle suffered minimal damage which the 2nd appellant showed was at the rear and the fact that the respondent’s vehicle suffered very extensive damage on its front part towards the left side, it is more logical to find that the lorry had already entered the junction and was way into crossing to Statehouse road when the collision occurred.
46. Ordinarily, as submitted by learned counsel for the respondent, a vehicle turning right should give way to the vehicle going straight on the main road. However, in this case, I have found that the respondent’s vehicle had approached Valley road from a feeder road and so had turned into Valley road in order to go downwards towards the CBD. The respondent said he saw the lorry at a distance of 10 metres before the impact. I have found that the lorry had indicated that it was turning right. Therefore, considering that the point of impact on the lorry was the very rear end, it means that if the respondent was careful, and paying attention to the presence of the lorry on the road he should have stopped or slowed down to give way to the lorry, which had properly entered Valley road before the his vehicle proceeded on to Valley road. The fact that the lorry was making a right turn cannot mean that it has to be blamed even for drivers who are in themselves not paying attention. It is apparent that the respondent may have been in a hurry and failed to properly estimate the distance and speed of the lorry and hoped that by the time he reached the point the collision occurred, it would have gone past but that was no to be.
47. The respondent’s conduct subsequent to the accident of agreeing to pursue the issue with his insurance company and offering the 2nd appellant KShs 2,000/= for the repair of the minimal damage to the lorry also indicates that he was and accepted that he was at fault.
48. In as much as she was brief in her decision, the learned Adjudicator ought to have made an indication of why she believed the respondents’ evidence and not that of the 2nd appellant. It would appear that it was on the basis of the ind
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