(Being an appeal against part of the judgment and decree of Hon. C. K. Ireri Resident Magistrate and Adjudicator delivered on 26th February 2023 via e-mail in Small Claims Court Case No. E5164 of 2023)
1. This appeal by way of a memorandum dated 22nd March 2024 arises from the judgment of the learned Adjudicator delivered on 23rd February 2024 in a claim dated 9th October 2023 by the appellant (claimant in the SCC) against the respondent (respondents in the SCC). This appeal seeks to challenge the trial court’s judgment on two issues, liability and quantum of damages.
2. The claim was by a minor aged 21/2 years through her mother as next friend through a claim dated 9th October 2023 for general and special damages for personal injuries arising out of a road traffic accident involving the minor and the respondent’s motor vehicle registration number KCL 804K on 23rd August 2023 at Sonic area along Githurai road. The claim alleged that the respondent as driver of the vehicle was negligent in his manner of driving by encroaching on the pedestrian path and hitting the minor violently thereby causing him to sustain serious injuries. The appellant thereby suffered loss and damage and sought compensation in the Small Claims Court against the respondent for general and special damages.
3. The respondent in his response dated 26th October 2023 denied the appellant’s claim in toto and raised a counterclaim to the claim.
4. The claim before the SCC proceeded by way of hearing where each party made available witnesses who adopted their respective witness statements, testified and were cross-examined.
5. The witnesses for the appellant were CW 1, Dr. Titus Ndeti, who examined the minor and prepared a medical report; CW 2, Hassan Njeru, a police officer from Kasarani police station, who produced the police abstract; CW 3, the minor’s mother and CW 4, Peris Njeri Kamande who was in company of the minor at the material time and witnessed the accident.
6. The respondent gave evidence at the trial as DW 1. He was the driver of the vehicle at the material time.
7. Upon analyzing the evidence, the learned Adjudicator found that the appellant had not proved her claim and dismissed it. She did not assess the possible damages she would have awarded had the claim been successful.
8. Dissatisfied with the learned Adjudicator’s decision the appellant now appeals to this court setting out some eight grounds of appeal in the memorandum and praying that the judgment of the learned Adjudicator be set aside and this court makes its own findings on the issue of liability and assessment of quantum of damages and the costs of the appeal and the SCC be awarded to the appellant.
9. The appeal was canvassed by way of written submissions filed by learned counsels for both parties. The submissions are considered in the analysis that follows. Learned counsel for the appellant submits that the appellant’s case was proved on a balance of probability, the standard for civil cases before the other courts and also in failing to assess damages payable.
10. Learned counsel for the appellant submits that, contrary to what the learned Adjudicator found that the appellant’s evidence was marred with contradictions, CW 4 who was in company of the minor provided a clear and consistent account of what transpired. He submits further that contrary to what the learned Adjudicator found, the minor was not attempting to cross the road but was on a designated pedestrian path to which the respondent encroached and hit him.
11. Learned counsel submits further that if it be true that the minor was attempting to cross the road as alleged by the respondent and found by the trial court, then the respondent as an experienced driver ought to have anticipated the minor’s action and as a prudent driver to have stopped the vehicle completely to allow the minor to cross to the other side since he had already seen him.
12. Learned counsel submits further that given the young age of the minor at 21/2 years he cannot be held to have contributed to the accident. He cited the case of EWO (suing as the next friend of a minor COW) v Chairman Board of Governors-Agoro Yombe Secondary School [2018] KEHC 125 (KLR) to support that submission.
13. Learned counsel for the respondent submits that the evidence of the appellant departed from her pleadings because the evidence of CW 4, Peris Njeri, the sole eye witness gave evidence that contradicted the contents of the statement of claim. He cited the case of David Sironka Ole Tukai v Francis Arap Muge & 2 others [2014] eKLR where the court held that it is for the purpose of certainty and finality that each party is bound by his own pleadings.
14. 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.
15. The eight grounds of appeal set out in the memorandum are basically two issues raised in so many paragraphs. First that the learned trial Adjudicator erred in finding the case not proved against the respondent against the weight of the evidence tendered at the hearing and second that she erred in law by failing to assess the award of quantum of damages that would be payable to the appellant.
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.
17. In five out of the eight paragraphs of the grounds of appeal laid out in the memorandum, the learned counsel for the appellant keeps adverting to the learned magistrate having “erred in law and in fact.” Learned counsel would do well to refer to and be guided by the Court of Appeal’s observation in the case of Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR 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.”
18. The Court of Appeal in M’Riungu v. Republic [1983] KLR 455, considering how to proceed to determine an appeal on points of law only, 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”.
19. The appellate court may however justifiably interfere with the findings of fact by 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 as has been held in numerous decisions. (see for instance Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others [2014] eKLR.
20. The principles are also captured in the case of Ephantus Mwangi And Another vs. Duncan Mwangi Wambugu, [1982-88] 1 KAR 278) and Simon Muchemi Atako & Another vs. Gordon Osore [2013] eKLR as follows:
a) The trial Magistrate reached a finding that is not based on evidence /or is based on no evidence going by the record.
b) The trial court misapprehended the evidence in some material respect.
c) The trial court proceeded on wrong principles by taking into account some irrelevant factor or leaving out of account some relevant factor.
d) The trial court failed to take account of a particular circumstance or probability material to an estimate of the evidence.
e) The trial Magistrate’s impression, based on the demeanour of a material witness, is inconsistent with the evidence in the case generally
21. Therefore, on any issue raised in the appeal that touches on facts, this court is not bound to upset the findings of the trial court unless this court finds that the trial court was in breach of any of the principles above.
22. Section 32 of the Small Claims Court Act exempts 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. The High Court will ordinarily not be seised of the facts presented before the SCC, since the record of the court consists of summaries of the facts of the issues in dispute in respect of those claims as determined and recorded by the SCC during the hearing of the claims (section 22(b) of the Act). Seeing that the record consists only of summaries it follows that an appellate cannot proceed with the case by way of a rehearing and re-evaluation of evidence as is the norm in normal civil matters.
23. In this case however, the learned Adjudicator relied entirely on the evidence presented by the witnesses and therefore this court will consider the same to determine whether his decision is subject to interference by this court.
24. The main issue of law raised by the appellant through the grounds of appeal and the submissions of learned counsel is on the weight of evidence relied upon by the learned Adjudicator is that the learned Adjudicator disregarded the evidence tendered by the appellant and instead relied on the evidence from the respondent to arrive at her decision.
25. In analyzing the evidence, the learned Adjudicator observed that it had not come out clearly on the side of the claimant where and how the accident occurred.
26. The first port of call is to understand the working of the SCC. In my understanding, a small claim is a claim not just limited in the name or the monetary value or jurisdiction of the court but also small or limited in terms of the timelines for the hearing and determination, the procedures of lodging and prosecuting the claim, in terms of evidence taking and evaluation and in terms of the brevity of the court’s decision. In other jurisdictions, it is even small in terms of the legal background and training of the persons who preside over it. In Kenya the presiding judicial officer is referred to as an Adjudicator and not a magistrate with full legal training but applying the law to determine disputes in a simple way almost informally but expeditiously as per the SCC Act. For instance, section 34(2) 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.
27. So, when parties subject their claims before this court, they should be aware of and be prepared to abide by the constitutive elements of the SCC including the fact that appeals to the High Court are only on issues of law and the appeal is final. The case before a SCC is a claim and not a suit. I believe that is why the SCC Act exempts the court proceedings from the rigid application of the standards of evidence under the Law of Evidence Act (Cap. 80) Laws of Kenya and permits the court to include as evidence any material that it deems credible or trustworthy. The procedures are also flexible and the court is not bound by the Civil Procedure Rules (2010).
28. Therefore, the submission by the respondent that the pleadings by the appellant did not conform to certain provisions of the Civil Procedure Rules cannot be taken to be serious.
29. I consider the evidence tendered before the trial court to determine whether the learned trial Adjudicator’s decision may be faulted on any of the principles set out in the cases above.
30. CW 4 and DW 1 were the witnesses to the accident. They gave contrasting accounts of what happened. The learned trial Adjudicator faced with that situation was required to determine which account was more plausible. It appears that she believed the account tendered by the respondent. The question is, was it plausible?
31. To begin with the learned trial Adjudicator found that the appellant’s case was marred with inconsistencies because according to her it was not clear from the appellant’s evidence where and how the accident happened because the claimant (appellant) had in her statement of claim stated that the minor was walking along the road with his guardian but that the guardian, CW 4 testified at the hearing that she was with the minor outside CW 3’s shop breastfeeding her child and that the minor was standing beside the road. The learned Adjudicator thought that this was a major contradiction but I do not think any reasonable tribunal properly exercising its mind to the facts would arrive at that conclusion because the fact is that the minor was beside the road at the particular time. Whether he was walking or standing, from the circumstances of this particular case, is not material. Evidence by CW 4 was that the minor was off the road while the respondent had his version of the events.
32. The other point in which the learned Adjudicator held to be a contradiction was in the evidence of CW 4 when she said in cross-examination that the shop at which they were with the minor is on the left side of the road but in re-examination she said it was on the right side of the road and that the accident occurred on the right side of the road.
33. Here the learned trial Adjudicator clearly failed to appreciate the evidence as tendered. In fact, what CW 4 said in relation to the position of the shop was similar to what the respondent also said that while facing Githurai 44 direction the shop is on the left side. She then said in re-examination that the shop is on the right coming from Githurai to Sonic. That is not evidence of two different positions of the shop but one and the same, depending on the direction one is facing. While facing towards Githurai direction it is on the left, and while facing away from Githurai 44 direction it is on the right. The witness was therefore consistent on that issue and not contradictory as found by the learned Adjudicator.
34. On his part, the respondent said that he was driving from Githurai 45 to Githurai 44 and the child was on the right side of the road trying to cross the road as the guardian was calling him from the left side. This is consistent and supports the evidence of CW 4 that the shop is on the left side of the road as one faces Githurai 44. On that basis, the finding of the learned trial magistrate that the evidence of CW 4 was full of contradictions must be faulted and consequently set aside.
35. The evidence of CW 4, taken as it was, before considering the evidence of DW 1, was sufficient to prove negligence against the respondent. However, given that the respondent gave his own version of the events the evidence of CW 4 at the close of the case for the appellant has to be considered as prima facie proving the case.
36. The respondent’s version of events was that the child was trying to cross the road when he was hit by the car on the right said. He said that the area is a residential neighbourhood with high rise blocks on both sides with limited roadsides but sufficient sidewalks for pedestrians and therefore he slowly navigated the narrow road at a snail’s pace clearly aware of the features of the road which also had bumps. The road was crowded, narrow and cars were parked randomly on the road. He had just driven over a bump and was just about to drive over another when the accident occurred. The minor suddenly emerged from the side of the road, dashed into the road with the intention of crossing over to the left side where his guardian who had called him was. In the process the minor was knocked by the vehicle’s side panel and he fell on the tarmac.
37. The learned Adjudicator was faced with two contrasting explanations of how the accident occurred. The minor’s guardian alleging that the minor was off the road on the left side when he was hit and the driver of the vehicle alleging that the minor dashed onto the road from the right side and was knocked by the vehicle’s right side panel.
38. Whose version of events, between the two should be believed? The learned Adjudicator believed the evidence of RW 1. If the benefit of belief is given to the respondent that his version was the more plausible then he would be found negligent for various reasons. First as he said, his vehicle was moving at a snail’s pace in a densely populated residential area with vehicles parked on the side of the road. He had just driven over a bump and was heading to drive over another. Yet he could not see a small boy attempting to cross the road not from his nearside but from the far side of the road. It was precisely for purposes of slowing down vehicles that bumps were placed on the road and it would seem from his evidence, fairly close together. It would be quite understandable that the bumps were so close, because of the high human traffic in the area coupled with fact that it was a residential area. At the same time, the respondent said that he was able to see that the boy’s guardian on the left side was calling him towards her. That evidence would mean that he had seen both the guardian and the minor on either side of the road. The impact of the collision between the vehicle and the minor does not seem to have been so violent, judging from the not so serious injuries sustained. That would mean that indeed the vehicle was not at high speed. However, it would mean that the driver was not paying full attention to his surroundings, read the people on the road and therefore driving without due care and attention in the circumstances. If he had managed to see and hear CW 4 calling the boy who was allegedly on the other side of the road, his whiskers ought to have become raised and more alert given the circumstances obtaining at that moment so as to stop the car at once. If his version is believed it would be obvious that he was not so attentive to his surroundings that by the time the minor reached his vehicle he did not have sufficient time to bring the car to a stop before it hitting him. Or if he had seen the minor then it would mean he thought he would quickly bypass him but given the fact that the car collided with the minor it means that would be a miscalculation on his part.
39. It follows, as submitted by counsel for the appellant that, on his own evidence, the respondent was still culpable in negligence in the circumstances of the case.
40. Learned counsel for the respondent submitted that the circumstances of the case called for the court’s finding that the minor contributed to the cause of the accident. Learned counsel for the appellant on his part submitted correctly that the minor in this case being of very tender age, cannot be found culpable of contributory negligence because he does not have the road sense to take precautions of his own safety. In fact, if the apppellant’s version of events was to be believed, this case would very ably support this position because, for the minor to have dashed to cross the road when there was a vehicle moving thereon it means he completely had no road sense at all.
41. In the case of Rahima Tayab & Another versus Anna Mary Kinaru (1982-88) 1KLR 90, , the Court of Appeal considered the question of age of a child as a factor whenever questions of contributory negligence arise. The court cited its predecessor’s decision in Attorney General versus Vinod (1971) EA 147 which found that a boy aged eight and a half years who ran out from a line of parked cars into the path of an oncoming car, was contributorily negligent to the extent of 10%. The court quoted Mustafa J.A. who said:-
“In dealing with contributory negligence on the part of a young boy the age of this boy and his ability to understand and appreciate the dangers involved have to be taken into consideration.”
42. The learned Judge of Appeal went on to quote the judgment of Lord Denning in Gough versus Thorne (1966) WLR 1387 where he said:
“A very young child cannot be guilty of contributory negligence. An older child may be. But it depends on the circumstances. A judge should only find a child guilty of contributory negligence if he or she is of such an age as to be expected to take precautions for his or her own safety; and then he or she is only to be found guilty if blame is attached to him or her. A child has not the road sense of his or her elders. He or she is not to be found guilty unless he or she is blameworthy.”
43. There is no doubt that the minor herein, aged 21/2years is in the category of “a very young child” in circumstances that Lord Denning had in mind; and therefore could not be held to be contributorly negligent because he clearly lacked the requisite road sense and apprehension of the potential danger of crossing the road while the vehicle was passing there. In that case the respondent would still bear liability for the accident wholly.
44. In those circumstances it was immaterial to consider which of the versions of the occurrence of the accident between that of the appellant and that of the respondent was more plausible because either way, the respondent was wholly culpable for causing the accident.
45. Therefore, the finding of the learned Adjudicator on liability was erroneous and must be and is hereby set aside and substituted with a finding that the respondent was negligent in his manner of driving and thereby knocked down and injured the minor.
46. Considering the evidence that was tendered before the trial court I think the learned Adjudicator failed to take account of some circumstances or probability material to an estimate of the evidence as pointed out above and therefore fell into error in its findings. The findings on liability must be and are hereby set aside.
47. On the assessment of quantum of damages, I have considered injuries sustained by the minor as confirmed by the report of Dr. Titus Ndeti Nzina dated 2nd October 2023 which were:
a. Severe degloving injuries to the left upper limp anterior and posterior aspects around the elbow joint.
b. Lacerations on the right upper limb.
c. Degloving injuries to the right foot.
d. Deep cut wound to the left orbital region.
e. Lacerations on the scalp.
48. The report also indicates that after the accident, the minor was taken to St. John’s hospital and referred to Thika Level 5 hospital where he was admitted from 24th August 2023 to 29th August 2023. On examination, the doctor’s findings were:
a. General condition fair but in pain.
b. Scars on the left upper limb around the elbow joint.
c. Restrictions of joint movement of the left elbow joint.
49. Dr. Ndeti indicated in his opinion and prognosis that the minor sustained severe soft tissue injuries as a result of the accident which caused hin untold pain, blood loss and suffering. He classified the degree of injury as grevious harm. He observed that the injuries had formed contractures around the left elbow joint causing limitation of the joint movements and that the scars were permanent and of cosmetic concern at his age.
50. A referral form dated 23rd August 2023 from St. John’s hospital Ltd to Thika Level 4 hospital and a discharge summary from Thika Leval 4 hospital indicating the date of admission as 24th August 2023 and date of discharge as 29th August 2023 were also produced as exhibits in evidence.
51. In her evidence CW 4 testified that after the vehicle hit the minor, it dragged him on the road. That he was bleeding and had lost a chunk of flesh on his left hand. That the minor has difficulty stretching his hand.
52. The respondent indicated in his witness statement that from St. John’s hospital they were referred to Kenyatta University Referral hospital where the minor had a scan done and he paid KShs 700/=. There was no document produced either by the appellant or respondent showing that medical attention for the minor was sought and had at Kenyatta University Referral hospital. Interestingly, learned counsel for the appellant submitted before the trial court that “the respondent also filed treatment notes from Kenyatta University Teaching & Referral hospital wherein it was noted that the minor sustained a fracture to the left hand and bruises.” I have not seen any such treatment notes filed by the respondent. Lerned counsel proposed for an award of KShs 900,000/= as general damages compensation for the minor’s injuries. He cited the cases of:
a. Easy Coach Limited v Emily Nyangasi [2017] eKLR in which the respondent sustained facial injuries, injury to chest, injury to back, injury to right hand with cut wound and injury to right leg with cut wounds. The most serious injuries were on the right hand which healed with a 10 cm scar with keloid formation on the elbow, and on the right leg which was treated through grafting and healed with healed 18cm scar right thigh, 26 cm scar right leg, 28 cm scar right leg below the knee and 12 cm scar right foot with keloid formation. The High Court on appeal in 2017 sustained an award by the trial court of Kshs. 700,000/= on general damages for pain and suffering and loss of amenities.
b. Wycliffe Lumula M'masi v Ernest Waithatka & another [2020] KEHC 6393 (KLR) the High Court on appeal varied the lower court award of General damages from KShs 400,000/= to KShs 300,000/= where the injuries sustained by the plaintiff before the trial court were as follows;
i. Extensive degloving injury on the right foot
ii. Extensive skin loss on the right foot.
X-rays done revealed fracture of the right talus bone (major bone of the ankle joint and foot). Surgical toilet was carried out and later skin grafting of the wounds done. All the wounds did not heal and to date there are still wounds which have not yet healed.
The doctor opined that the plaintiff suffered a lot of pain and blood loss from the major injuries he sustained on the right foot. He also suffered a lot of pain after the many surgical toilet procedures and from the skin grafting operation. The wounds on the right foot were rather extensive and if left alone they would take very long time to heal.
The doctor recommended surgery to apply another skin graft at the cost of kshs. 120,000/=. He assessed the degree of harm to the extent of 30%. He also opined that the plaintiff could not be gainfully employed as a security guard any time soon or ever.
53. The respondent on his part proposed for a sum of KShs 150,000/= general damages for pain, suffering and loss of amenities. He cited the following cases:
a. Jubilee Hauliers Limited & Another v Mary Waithera Wanja (2019) eKLR where the High Court upheld an award of Kshs. 200,000/= for degloving injuries to elbow, multiple lacerations on the right arm and soft tissue injuries on the chest, cut on the tongue and bruises on the forehead.
b. Nyamai Petronilla & another v Monicah Musyoki [2020] KEHC 1979 (KLR). The respondent sustained a fracture to the right thumb and a degloving injury to the left leg; in addition, a permanent incapacity of 1% on the right thumb was noted. The High Court on appeal substituted the award of the trial court on general damages of KShs 350,000/= with an award of KShs 200,000/-.
c. Hashim Mohamed Said & another v Lawrence Kibor Tuwei [2018] KEHC 450 (KLR). This case did not involve degloving comparable injuries at all and so has no comparison to the present case.
d. Maseno University College v Elizabeth Kerubo Mokaya [2021] KEHC 6571 (KLR). The respondent suffered a chest contusion; bruises on the right forearm and right leg including the right and left elbow; degloving injury on the left floor and dislocation of the left ankle. In his report, Dr. Morebu Peter Momanyi was of the opinion that the dislocation may lead to post traumatic arthritis and that the respondent may require to undergo surgery for the degloving injury so that skin grafting may be done. The High Court on appeal substituted the trial court award of KShs 600,000/= general damages for pain, suffering and loss of amenities which it found to be excessive with Kshs 200,000/=.
54. I have considered the cited authorities and the injuries sustained by the appellant. I find they all contain fairly comparable injuries to those sustained by the minor herein save that none of them involved a minor with contractures formed around the injury site, in this case, the left elbow limiting the joint movements and also permanent scars of cosmetic concern. For me, these make the injuries more severe.
55. Doing the best I can in the circumstances, I find that a sum of KShs 350,000/= would be adequate compensation as general damages for pain, suffering and loss of amenities.
56. On special damages, the appellant had pleaded for KShs 29,395/= as treatment expenses, KShs 5,000/= for the medical report and Kshs 550/= for motor vehicle search making a total of KShs 34,945/=.. I have seen receipts that were produced as exhibits to support each of these items. I am satisfied that the same were specifically pleaded and strictly proved. I award the sum of KShs 34,945/= special damages.
57. Consequently, I find the appeal has merit and it succeeds. The judgment and order of the learned trial Adjudicator is set aside in its entirety and substituted with a judgment allowing the appellant’s claim on 100% liability basis against the responde
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1. This appeal by way of a memorandum dated 22nd March 2024 arises from the judgment of the learned Adjudicator delivered on 23rd February 2024 in a claim dated 9th October 2023 by the appellant (claimant in the SCC) against the respondent (respondents in the SCC). This appeal seeks to challenge the trial court’s judgment on two issues, liability and quantum of damages.
2. The claim was by a minor aged 21/2 years through her mother as next friend through a claim dated 9th October 2023 for general and special damages for personal injuries arising out of a road traffic accident involving the minor and the respondent’s motor vehicle registration number KCL 804K on 23rd August 2023 at Sonic area along Githurai road. The claim alleged that the respondent as driver of the vehicle was negligent in his manner of driving by encroaching on the pedestrian path and hitting the minor violently thereby causing him to sustain serious injuries. The appellant thereby suffered loss and damage and sought compensation in the Small Claims Court against the respondent for general and special damages.
3. The respondent in his response dated 26th October 2023 denied the appellant’s claim in toto and raised a counterclaim to the claim.
4. The claim before the SCC proceeded by way of hearing where each party made available witnesses who adopted their respective witness statements, testified and were cross-examined.
5. The witnesses for the appellant were CW 1, Dr. Titus Ndeti, who examined the minor and prepared a medical report; CW 2, Hassan Njeru, a police officer from Kasarani police station, who produced the police abstract; CW 3, the minor’s mother and CW 4, Peris Njeri Kamande who was in company of the minor at the material time and witnessed the accident.
6. The respondent gave evidence at the trial as DW 1. He was the driver of the vehicle at the material time.
7. Upon analyzing the evidence, the learned Adjudicator found that the appellant had not proved her claim and dismissed it. She did not assess the possible damages she would have awarded had the claim been successful.
8. Dissatisfied with the learned Adjudicator’s decision the appellant now appeals to this court setting out some eight grounds of appeal in the memorandum and praying that the judgment of the learned Adjudicator be set aside and this court makes its own findings on the issue of liability and assessment of quantum of damages and the costs of the appeal and the SCC be awarded to the appellant.
9. The appeal was canvassed by way of written submissions filed by learned counsels for both parties. The submissions are considered in the analysis that follows. Learned counsel for the appellant submits that the appellant’s case was proved on a balance of probability, the standard for civil cases before the other courts and also in failing to assess damages payable.
10. Learned counsel for the appellant submits that, contrary to what the learned Adjudicator found that the appellant’s evidence was marred with contradictions, CW 4 who was in company of the minor provided a clear and consistent account of what transpired. He submits further that contrary to what the learned Adjudicator found, the minor was not attempting to cross the road but was on a designated pedestrian path to which the respondent encroached and hit him.
11. Learned counsel submits further that if it be true that the minor was attempting to cross the road as alleged by the respondent and found by the trial court, then the respondent as an experienced driver ought to have anticipated the minor’s action and as a prudent driver to have stopped the vehicle completely to allow the minor to cross to the other side since he had already seen him.
12. Learned counsel submits further that given the young age of the minor at 21/2 years he cannot be held to have contributed to the accident. He cited the case of EWO (suing as the next friend of a minor COW) v Chairman Board of Governors-Agoro Yombe Secondary School [2018] KEHC 125 (KLR) to support that submission.
13. Learned counsel for the respondent submits that the evidence of the appellant departed from her pleadings because the evidence of CW 4, Peris Njeri, the sole eye witness gave evidence that contradicted the contents of the statement of claim. He cited the case of David Sironka Ole Tukai v Francis Arap Muge & 2 others [2014] eKLR where the court held that it is for the purpose of certainty and finality that each party is bound by his own pleadings.
14. 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.
15. The eight grounds of appeal set out in the memorandum are basically two issues raised in so many paragraphs. First that the learned trial Adjudicator erred in finding the case not proved against the respondent against the weight of the evidence tendered at the hearing and second that she erred in law by failing to assess the award of quantum of damages that would be payable to the appellant.
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.
17. In five out of the eight paragraphs of the grounds of appeal laid out in the memorandum, the learned counsel for the appellant keeps adverting to the learned magistrate having “erred in law and in fact.” Learned counsel would do well to refer to and be guided by the Court of Appeal’s observation in the case of Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR 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.”
18. The Court of Appeal in M’Riungu v. Republic [1983] KLR 455, considering how to proceed to determine an appeal on points of law only, 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”.
19. The appellate court may however justifiably interfere with the findings of fact by 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 as has been held in numerous decisions. (see for instance Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others [2014] eKLR.
20. The principles are also captured in the case of Ephantus Mwangi And Another vs. Duncan Mwangi Wambugu, [1982-88] 1 KAR 278) and Simon Muchemi Atako & Another vs. Gordon Osore [2013] eKLR as follows:
a) The trial Magistrate reached a finding that is not based on evidence /or is based on no evidence going by the record.
b) The trial court misapprehended the evidence in some material respect.
c) The trial court proceeded on wrong principles by taking into account some irrelevant factor or leaving out of account some relevant factor.
d) The trial court failed to take account of a particular circumstance or probability material to an estimate of the evidence.
e) The trial Magistrate’s impression, based on the demeanour of a material witness, is inconsistent with the evidence in the case generally
21. Therefore, on any issue raised in the appeal that touches on facts, this court is not bound to upset the findings of the trial court unless this court finds that the trial court was in breach of any of the principles above.
22. Section 32 of the Small Claims Court Act exempts 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. The High Court will ordinarily not be seised of the facts presented before the SCC, since the record of the court consists of summaries of the facts of the issues in dispute in respect of those claims as determined and recorded by the SCC during the hearing of the claims (section 22(b) of the Act). Seeing that the record consists only of summaries it follows that an appellate cannot proceed with the case by way of a rehearing and re-evaluation of evidence as is the norm in normal civil matters.
23. In this case however, the learned Adjudicator relied entirely on the evidence presented by the witnesses and therefore this court will consider the same to determine whether his decision is subject to interference by this court.
24. The main issue of law raised by the appellant through the grounds of appeal and the submissions of learned counsel is on the weight of evidence relied upon by the learned Adjudicator is that the learned Adjudicator disregarded the evidence tendered by the appellant and instead relied on the evidence from the respondent to arrive at her decision.
25. In analyzing the evidence, the learned Adjudicator observed that it had not come out clearly on the side of the claimant where and how the accident occurred.
26. The first port of call is to understand the working of the SCC. In my understanding, a small claim is a claim not just limited in the name or the monetary value or jurisdiction of the court but also small or limited in terms of the timelines for the hearing and determination, the procedures of lodging and prosecuting the claim, in terms of evidence taking and evaluation and in terms of the brevity of the court’s decision. In other jurisdictions, it is even small in terms of the legal background and training of the persons who preside over it. In Kenya the presiding judicial officer is referred to as an Adjudicator and not a magistrate with full legal training but applying the law to determine disputes in a simple way almost informally but expeditiously as per the SCC Act. For instance, section 34(2) 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.
27. So, when parties subject their claims before this court, they should be aware of and be prepared to abide by the constitutive elements of the SCC including the fact that appeals to the High Court are only on issues of law and the appeal is final. The case before a SCC is a claim and not a suit. I believe that is why the SCC Act exempts the court proceedings from the rigid application of the standards of evidence under the Law of Evidence Act (Cap. 80) Laws of Kenya and permits the court to include as evidence any material that it deems credible or trustworthy. The procedures are also flexible and the court is not bound by the Civil Procedure Rules (2010).
28. Therefore, the submission by the respondent that the pleadings by the appellant did not conform to certain provisions of the Civil Procedure Rules cannot be taken to be serious.
29. I consider the evidence tendered before the trial court to determine whether the learned trial Adjudicator’s decision may be faulted on any of the principles set out in the cases above.
30. CW 4 and DW 1 were the witnesses to the accident. They gave contrasting accounts of what happened. The learned trial Adjudicator faced with that situation was required to determine which account was more plausible. It appears that she believed the account tendered by the respondent. The question is, was it plausible?
31. To begin with the learned trial Adjudicator found that the appellant’s case was marred with inconsistencies because according to her it was not clear from the appellant’s evidence where and how the accident happened because the claimant (appellant) had in her statement of claim stated that the minor was walking along the road with his guardian but that the guardian, CW 4 testified at the hearing that she was with the minor outside CW 3’s shop breastfeeding her child and that the minor was standing beside the road. The learned Adjudicator thought that this was a major contradiction but I do not think any reasonable tribunal properly exercising its mind to the facts would arrive at that conclusion because the fact is that the minor was beside the road at the particular time. Whether he was walking or standing, from the circumstances of this particular case, is not material. Evidence by CW 4 was that the minor was off the road while the respondent had his version of the events.
32. The other point in which the learned Adjudicator held to be a contradiction was in the evidence of CW 4 when she said in cross-examination that the shop at which they were with the minor is on the left side of the road but in re-examination she said it was on the right side of the road and that the accident occurred on the right side of the road.
33. Here the learned trial Adjudicator clearly failed to appreciate the evidence as tendered. In fact, what CW 4 said in relation to the position of the shop was similar to what the respondent also said that while facing Githurai 44 direction the shop is on the left side. She then said in re-examination that the shop is on the right coming from Githurai to Sonic. That is not evidence of two different positions of the shop but one and the same, depending on the direction one is facing. While facing towards Githurai direction it is on the left, and while facing away from Githurai 44 direction it is on the right. The witness was therefore consistent on that issue and not contradictory as found by the learned Adjudicator.
34. On his part, the respondent said that he was driving from Githurai 45 to Githurai 44 and the child was on the right side of the road trying to cross the road as the guardian was calling him from the left side. This is consistent and supports the evidence of CW 4 that the shop is on the left side of the road as one faces Githurai 44. On that basis, the finding of the learned trial magistrate that the evidence of CW 4 was full of contradictions must be faulted and consequently set aside.
35. The evidence of CW 4, taken as it was, before considering the evidence of DW 1, was sufficient to prove negligence against the respondent. However, given that the respondent gave his own version of the events the evidence of CW 4 at the close of the case for the appellant has to be considered as prima facie proving the case.
36. The respondent’s version of events was that the child was trying to cross the road when he was hit by the car on the right said. He said that the area is a residential neighbourhood with high rise blocks on both sides with limited roadsides but sufficient sidewalks for pedestrians and therefore he slowly navigated the narrow road at a snail’s pace clearly aware of the features of the road which also had bumps. The road was crowded, narrow and cars were parked randomly on the road. He had just driven over a bump and was just about to drive over another when the accident occurred. The minor suddenly emerged from the side of the road, dashed into the road with the intention of crossing over to the left side where his guardian who had called him was. In the process the minor was knocked by the vehicle’s side panel and he fell on the tarmac.
37. The learned Adjudicator was faced with two contrasting explanations of how the accident occurred. The minor’s guardian alleging that the minor was off the road on the left side when he was hit and the driver of the vehicle alleging that the minor dashed onto the road from the right side and was knocked by the vehicle’s right side panel.
38. Whose version of events, between the two should be believed? The learned Adjudicator believed the evidence of RW 1. If the benefit of belief is given to the respondent that his version was the more plausible then he would be found negligent for various reasons. First as he said, his vehicle was moving at a snail’s pace in a densely populated residential area with vehicles parked on the side of the road. He had just driven over a bump and was heading to drive over another. Yet he could not see a small boy attempting to cross the road not from his nearside but from the far side of the road. It was precisely for purposes of slowing down vehicles that bumps were placed on the road and it would seem from his evidence, fairly close together. It would be quite understandable that the bumps were so close, because of the high human traffic in the area coupled with fact that it was a residential area. At the same time, the respondent said that he was able to see that the boy’s guardian on the left side was calling him towards her. That evidence would mean that he had seen both the guardian and the minor on either side of the road. The impact of the collision between the vehicle and the minor does not seem to have been so violent, judging from the not so serious injuries sustained. That would mean that indeed the vehicle was not at high speed. However, it would mean that the driver was not paying full attention to his surroundings, read the people on the road and therefore driving without due care and attention in the circumstances. If he had managed to see and hear CW 4 calling the boy who was allegedly on the other side of the road, his whiskers ought to have become raised and more alert given the circumstances obtaining at that moment so as to stop the car at once. If his version is believed it would be obvious that he was not so attentive to his surroundings that by the time the minor reached his vehicle he did not have sufficient time to bring the car to a stop before it hitting him. Or if he had seen the minor then it would mean he thought he would quickly bypass him but given the fact that the car collided with the minor it means that would be a miscalculation on his part.
39. It follows, as submitted by counsel for the appellant that, on his own evidence, the respondent was still culpable in negligence in the circumstances of the case.
40. Learned counsel for the respondent submitted that the circumstances of the case called for the court’s finding that the minor contributed to the cause of the accident. Learned counsel for the appellant on his part submitted correctly that the minor in this case being of very tender age, cannot be found culpable of contributory negligence because he does not have the road sense to take precautions of his own safety. In fact, if the apppellant’s version of events was to be believed, this case would very ably support this position because, for the minor to have dashed to cross the road when there was a vehicle moving thereon it means he completely had no road sense at all.
41. In the case of Rahima Tayab & Another versus Anna Mary Kinaru (1982-88) 1KLR 90, , the Court of Appeal considered the question of age of a child as a factor whenever questions of contributory negligence arise. The court cited its predecessor’s decision in Attorney General versus Vinod (1971) EA 147 which found that a boy aged eight and a half years who ran out from a line of parked cars into the path of an oncoming car, was contributorily negligent to the extent of 10%. The court quoted Mustafa J.A. who said:-
“In dealing with contributory negligence on the part of a young boy the age of this boy and his ability to understand and appreciate the dangers involved have to be taken into consideration.”
42. The learned Judge of Appeal went on to quote the judgment of Lord Denning in Gough versus Thorne (1966) WLR 1387 where he said:
“A very young child cannot be guilty of contributory negligence. An older child may be. But it depends on the circumstances. A judge should only find a child guilty of contributory negligence if he or she is of such an age as to be expected to take precautions for his or her own safety; and then he or she is only to be found guilty if blame is attached to him or her. A child has not the road sense of his or her elders. He or she is not to be found guilty unless he or she is blameworthy.”
43. There is no doubt that the minor herein, aged 21/2years is in the category of “a very young child” in circumstances that Lord Denning had in mind; and therefore could not be held to be contributorly negligent because he clearly lacked the requisite road sense and apprehension of the potential danger of crossing the road while the vehicle was passing there. In that case the respondent would still bear liability for the accident wholly.
44. In those circumstances it was immaterial to consider which of the versions of the occurrence of the accident between that of the appellant and that of the respondent was more plausible because either way, the respondent was wholly culpable for causing the accident.
45. Therefore, the finding of the learned Adjudicator on liability was erroneous and must be and is hereby set aside and substituted with a finding that the respondent was negligent in his manner of driving and thereby knocked down and injured the minor.
46. Considering the evidence that was tendered before the trial court I think the learned Adjudicator failed to take account of some circumstances or probability material to an estimate of the evidence as pointed out above and therefore fell into error in its findings. The findings on liability must be and are hereby set aside.
47. On the assessment of quantum of damages, I have considered injuries sustained by the minor as confirmed by the report of Dr. Titus Ndeti Nzina dated 2nd October 2023 which were:
a. Severe degloving injuries to the left upper limp anterior and posterior aspects around the elbow joint.
b. Lacerations on the right upper limb.
c. Degloving injuries to the right foot.
d. Deep cut wound to the left orbital region.
e. Lacerations on the scalp.
48. The report also indicates that after the accident, the minor was taken to St. John’s hospital and referred to Thika Level 5 hospital where he was admitted from 24th August 2023 to 29th August 2023. On examination, the doctor’s findings were:
a. General condition fair but in pain.
b. Scars on the left upper limb around the elbow joint.
c. Restrictions of joint movement of the left elbow joint.
49. Dr. Ndeti indicated in his opinion and prognosis that the minor sustained severe soft tissue injuries as a result of the accident which caused hin untold pain, blood loss and suffering. He classified the degree of injury as grevious harm. He observed that the injuries had formed contractures around the left elbow joint causing limitation of the joint movements and that the scars were permanent and of cosmetic concern at his age.
50. A referral form dated 23rd August 2023 from St. John’s hospital Ltd to Thika Level 4 hospital and a discharge summary from Thika Leval 4 hospital indicating the date of admission as 24th August 2023 and date of discharge as 29th August 2023 were also produced as exhibits in evidence.
51. In her evidence CW 4 testified that after the vehicle hit the minor, it dragged him on the road. That he was bleeding and had lost a chunk of flesh on his left hand. That the minor has difficulty stretching his hand.
52. The respondent indicated in his witness statement that from St. John’s hospital they were referred to Kenyatta University Referral hospital where the minor had a scan done and he paid KShs 700/=. There was no document produced either by the appellant or respondent showing that medical attention for the minor was sought and had at Kenyatta University Referral hospital. Interestingly, learned counsel for the appellant submitted before the trial court that “the respondent also filed treatment notes from Kenyatta University Teaching & Referral hospital wherein it was noted that the minor sustained a fracture to the left hand and bruises.” I have not seen any such treatment notes filed by the respondent. Lerned counsel proposed for an award of KShs 900,000/= as general damages compensation for the minor’s injuries. He cited the cases of:
a. Easy Coach Limited v Emily Nyangasi [2017] eKLR in which the respondent sustained facial injuries, injury to chest, injury to back, injury to right hand with cut wound and injury to right leg with cut wounds. The most serious injuries were on the right hand which healed with a 10 cm scar with keloid formation on the elbow, and on the right leg which was treated through grafting and healed with healed 18cm scar right thigh, 26 cm scar right leg, 28 cm scar right leg below the knee and 12 cm scar right foot with keloid formation. The High Court on appeal in 2017 sustained an award by the trial court of Kshs. 700,000/= on general damages for pain and suffering and loss of amenities.
b. Wycliffe Lumula M'masi v Ernest Waithatka & another [2020] KEHC 6393 (KLR) the High Court on appeal varied the lower court award of General damages from KShs 400,000/= to KShs 300,000/= where the injuries sustained by the plaintiff before the trial court were as follows;
i. Extensive degloving injury on the right foot
ii. Extensive skin loss on the right foot.
X-rays done revealed fracture of the right talus bone (major bone of the ankle joint and foot). Surgical toilet was carried out and later skin grafting of the wounds done. All the wounds did not heal and to date there are still wounds which have not yet healed.
The doctor opined that the plaintiff suffered a lot of pain and blood loss from the major injuries he sustained on the right foot. He also suffered a lot of pain after the many surgical toilet procedures and from the skin grafting operation. The wounds on the right foot were rather extensive and if left alone they would take very long time to heal.
The doctor recommended surgery to apply another skin graft at the cost of kshs. 120,000/=. He assessed the degree of harm to the extent of 30%. He also opined that the plaintiff could not be gainfully employed as a security guard any time soon or ever.
53. The respondent on his part proposed for a sum of KShs 150,000/= general damages for pain, suffering and loss of amenities. He cited the following cases:
a. Jubilee Hauliers Limited & Another v Mary Waithera Wanja (2019) eKLR where the High Court upheld an award of Kshs. 200,000/= for degloving injuries to elbow, multiple lacerations on the right arm and soft tissue injuries on the chest, cut on the tongue and bruises on the forehead.
b. Nyamai Petronilla & another v Monicah Musyoki [2020] KEHC 1979 (KLR). The respondent sustained a fracture to the right thumb and a degloving injury to the left leg; in addition, a permanent incapacity of 1% on the right thumb was noted. The High Court on appeal substituted the award of the trial court on general damages of KShs 350,000/= with an award of KShs 200,000/-.
c. Hashim Mohamed Said & another v Lawrence Kibor Tuwei [2018] KEHC 450 (KLR). This case did not involve degloving comparable injuries at all and so has no comparison to the present case.
d. Maseno University College v Elizabeth Kerubo Mokaya [2021] KEHC 6571 (KLR). The respondent suffered a chest contusion; bruises on the right forearm and right leg including the right and left elbow; degloving injury on the left floor and dislocation of the left ankle. In his report, Dr. Morebu Peter Momanyi was of the opinion that the dislocation may lead to post traumatic arthritis and that the respondent may require to undergo surgery for the degloving injury so that skin grafting may be done. The High Court on appeal substituted the trial court award of KShs 600,000/= general damages for pain, suffering and loss of amenities which it found to be excessive with Kshs 200,000/=.
54. I have considered the cited authorities and the injuries sustained by the appellant. I find they all contain fairly comparable injuries to those sustained by the minor herein save that none of them involved a minor with contractures formed around the injury site, in this case, the left elbow limiting the joint movements and also permanent scars of cosmetic concern. For me, these make the injuries more severe.
55. Doing the best I can in the circumstances, I find that a sum of KShs 350,000/= would be adequate compensation as general damages for pain, suffering and loss of amenities.
56. On special damages, the appellant had pleaded for KShs 29,395/= as treatment expenses, KShs 5,000/= for the medical report and Kshs 550/= for motor vehicle search making a total of KShs 34,945/=.. I have seen receipts that were produced as exhibits to support each of these items. I am satisfied that the same were specifically pleaded and strictly proved. I award the sum of KShs 34,945/= special damages.
57. Consequently, I find the appeal has merit and it succeeds. The judgment and order of the learned trial Adjudicator is set aside in its entirety and substituted with a judgment allowing the appellant’s claim on 100% liability basis against the responde
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