Background:
1. The dispute before this Court originates from a ruling dated 27th October 2024 whereby the Trial court held that the judgement rendered on 30th September 2024 on the same dispute was based on wrong pleadings. This was brought to the attention of the Court by the Respondents.
2. The Court attributed the mix up to human error and that the Court while writing its judgement inadvertently relied on a different statement of claim leading to the basis of the review of the judgment issued earlier.
3. The background of the dispute is that parties consented on liability as follows Appellant to blame for the accident at 20% and the Respondents are liable 80%. The Trial Court was therefore invited to make findings on quantum.
4. The Appellants prayed for repair costs of Kshs.161,820/= since the repairs were done and paid for by the insurance among other charges which totalled to Kshs.231,201/=
5. In its Ruling, the trial Court held that the rule on special damages must be specifically pleaded and strictly proven. The court found that the Appellants hardly proved that that indeed the said amounts were paid and the only documents available are vouchers at the preparatory stage without any proof of payment. The court disallowed this prayer of Kshs.161,820/=.
6. The Court allowed assessors charges-inspection charges, NTSA charges and car hire charges. The tracing charges were disallowed on basis that they were not proven and there was no nexus between the instant case and the said tracing report.
The Appeal:
7. Through a Memorandum of Appeal dated the 15th November 2024, the Appellants preferred the following grounds of appeal: -
i. The Learned Adjudicator erred in Law and in Fact in in its ruling which was arrived at after the adjudicator realized the error it had previously made in its judgement dated 30th October 2024 which was based on wrong pleadings.
ii. The Trial Court erred in law and fact in finding that the payment vouchers produced in support of claim for repairs charges were not adequate proof of payment hence failed to award repair cost of Kshs.161,820/=
iii. The Learned Adjudicator erred in law and fact by failing to consider that the Appellants had demonstrated through the assessment report that actual loss of repair charges had been suffered.
iv. The Learned Adjudicator erred in law and fact in failing to award tracing charges as pleaded.
v. The Learned Adjudicator erred in law and fact in failing to take into consideration the evidence filed by the Appellant in support of special charges.
vi. The Learned Adjudicator erred in law and fact in awarding costs of Kshs.15,000 which is too low under the circumstances.
8. In his written submissions dated 28th November 2025, the Appellant claimed that the trial Court erred in its finding that the payment vouchers produced by the Appellant were not adequate proof of payment and that they didn’t prove the repairs charges were incurred.
9. The Appellant further faults the Trial Court for denying tracing charges saying they were not proven and even if they were there was no nexus between the instant case and the said tracing report.
10. The Appellant lastly faulted the Trial Court for awarding only Khs.15,000/= costs as being too low and order that the same be charged as per the Advocates Remuneration Order 2014.
11. The Appellant relied in two court of appeal cases on the payment vouchers which faulted magistrates court under similar circumstances.
12. The Respondents did not file written submissions in this Appeal.
Analysis and Determination:
13. The jurisdiction of this Court to entertain appeals from the Small Claims Court is strictly circumscribed by Section 38 of the Small Claims Court Act and are limited to matters of law and the appeal is final.
14. Whereas there has been no universally accepted definition of the term ‘matters of law’, there has been some working definitions thereto. The term ‘point of law’ may also be referred to as ‘matter of law’. In Peter Gichuki King'ara vs. IEBC & 2 others, Nyeri Civil Appeal No. 31 of 2013, Court of Appeal held that a decision challenged on the basis of wrongful exercise of discretion raises a point of law.
15. Having said so, since the instant appeal calls upon this Court to ascertain whether the trial Court properly arrived at its decision. The Appellants faults the Trial Court for finding that payment vouchers produced in support of the claim for repair charges were not adequate proof of payment. In their submissions, they have made reference to the invoice issued by the garage and the payment voucher No. 1000203-111305 dated 14/7/2021 showing the principal amount of Kshs.159,030/= was made and in payment voucher No,100203-111304 dated 14.7/2021 shows that Kshs.2,790/= being withholding VAT was made. The Appellant submits that the voucher is signed, date of payment and cheque numbers indicated therein which is sufficient proof that payment was made.
16. The Appellant further submits that the report dated 13th July 2021 confirms the motor vehicle had been repaired satisfactorily and stated that the cost of repairs was Kshs.161,820/=
17. This Court has taken time to study the Record of Appeal so as to establish whether Trial Court erred in holding the amount was not awardable, from page 23 of the record before this Court contains an invoice from Jasen Garage dated 25th May 2021 indicating the amount as Kshs.161,820/=. Page 24 of the record of appeal contains a payment request dated 14th July 2021 voucher No. 100203-111304 for Kshs.159,010.00 and page 25 contains payment request voucher No.100203-111304.
18. The payment voucher contains the following features: Policy No, Claim No., the old claim Number, payee code and the Risk. A description is further given being settlement amount on the claim No.C-2021-9001-27124.These features are similar in the payment request vouchers on page 25 to 30 of the Record of Appeal.
19. This Court has also observed that the Payment request voucher on page 24 bear the stamped dated 15th July 2021 indicating the cheques number 196515.
20. The Court has also looked at the reinspection letter dated 13th July 2021 and notes that it advised the insurance that the motor vehicle was ready to be released and that that final amount payable to the garage is Kshs.161,820/=
21. The Respondents response at the Trial Court was that they were not at fault in any way and asked the Trial Court to dismiss the claim with costs. In their submissions they submitted that the Appellant had not proved the special damages and that its trite law that special damages must not only be specifically pleaded but strictly proved.
22. This Court has looked at how the High Court has handled a similar issue. In Ndungu v M’Ikiao & another (Civil Appeal 182 of 2019) [2022] KEHC 15753 (KLR). The Court held as follows:
“On perusal of claim payment requisition voucher dated July 28, 2016 for Kshs 378,740/= from CIC, I note that it indicates cheque number as 265903 and shows it was authorized by CIC. From the foregoing, I am of the view there is sufficient proof of payment of the repair’s costs to Top Quality Auto Ltd, the garage which repaired the vehicle. The trial magistrate’s finding that there was no prove of payment of the said amount was erroneous. Total payable to appellant is therefore Kshs 378,740/= plus Kshs 36,680/= making a total of Kshs 415,420/=.”
23. In Nakuru Civil Appeal No. 129 of 2019: Julius Kariuki Kimani vs Evanson Kariuki AKA Evanson Mwaniki; The High Court held as follows:
“… the rationale for the rule that special damages must be strictly proved is to police the practise so that the plaintiffs do not represent exaggerated claims not ties to actual losses. The rule is therefore that a party claiming special damages must demonstrate that they actually made payments or suffered specific injury before compensation will be permitted otherwise demonstrate permitted degree of certainty that los or amount he will suffer in future’’
24. Court of appeal in Nkuene Dairy Farmers Co-op Society Ltd & another v Ngacha Ndeiya [2010] KECA 20 (KLR)held that;
“In our view special damages in material damage claim need not be shown to have actually been incurred. The Claimant is only required to show the extent of the damage and what it would cost to restore the damage item as near as possible to the condition it was before the damage complained of’’
25. In lieu of the above and looking at the totality of the evidence availed by the Appellant, this Court is therefore satisfied with the Appellant demonstrated that they are entitled to the award of Kshs.161,820/=
26. This Court therefore sets aside the finding of the Trial Court that disallowed the prayer.
27. This Court will now discuss the prayer for tracing charges which the Trial Court found that the same had not been proved and even if they had proved there was no nexus between the suit and the tracing report.
28. The Appellant submits that the purpose of the report was to help trace the whereabouts of the Respondents and the financial status. They submit that the claim is supported.
29. On this issue this Court is not persuaded that the same was necessary, there are other cheaper ways of ascertaining the status of the Respondents without physically doing all that. This Court is persuaded by the Decision of Mrima J in Kiarie v Shadrack and Sons Limited & another [2025] KEHC 10017 (KLR) -High Court Civil Appeal E762 of 2024, where he held that:
‘’The cost in issue was an unnecessary expense. He ought not to have incurred it simply because liability was on the Respondent.’’
30. For the above reasons, this Court therefore declines to issue the Tracing charges sought by the Appellant.
31. Lastly, this Court will not interfere with the costs awarded at the Trial Court. It is my considered view that the learned magistrate excised her discretion rightfully.
Disposition:
32. In the end, the following final orders hereby issue: -
[a] The Appeal is partly merited.
[b] The Appellant is granted Kshs.161,820/= repairs charges.
[c] The prayer for Tracing charges is declined.
[d] The Order (b) above is subject to the consented liability.
(b) Appellant will have the costs of this Appeal and the one of lower Court.
Orders Accordingly
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 26th day of June 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Obwori h/b Njoroge Learned Counsel for the Appellant.
No appearance for the Respondent.
Michael - Court Assistant.
1. The dispute before this Court originates from a ruling dated 27th October 2024 whereby the Trial court held that the judgement rendered on 30th September 2024 on the same dispute was based on wrong pleadings. This was brought to the attention of the Court by the Respondents.
2. The Court attributed the mix up to human error and that the Court while writing its judgement inadvertently relied on a different statement of claim leading to the basis of the review of the judgment issued earlier.
3. The background of the dispute is that parties consented on liability as follows Appellant to blame for the accident at 20% and the Respondents are liable 80%. The Trial Court was therefore invited to make findings on quantum.
4. The Appellants prayed for repair costs of Kshs.161,820/= since the repairs were done and paid for by the insurance among other charges which totalled to Kshs.231,201/=
5. In its Ruling, the trial Court held that the rule on special damages must be specifically pleaded and strictly proven. The court found that the Appellants hardly proved that that indeed the said amounts were paid and the only documents available are vouchers at the preparatory stage without any proof of payment. The court disallowed this prayer of Kshs.161,820/=.
6. The Court allowed assessors charges-inspection charges, NTSA charges and car hire charges. The tracing charges were disallowed on basis that they were not proven and there was no nexus between the instant case and the said tracing report.
The Appeal:
7. Through a Memorandum of Appeal dated the 15th November 2024, the Appellants preferred the following grounds of appeal: -
i. The Learned Adjudicator erred in Law and in Fact in in its ruling which was arrived at after the adjudicator realized the error it had previously made in its judgement dated 30th October 2024 which was based on wrong pleadings.
ii. The Trial Court erred in law and fact in finding that the payment vouchers produced in support of claim for repairs charges were not adequate proof of payment hence failed to award repair cost of Kshs.161,820/=
iii. The Learned Adjudicator erred in law and fact by failing to consider that the Appellants had demonstrated through the assessment report that actual loss of repair charges had been suffered.
iv. The Learned Adjudicator erred in law and fact in failing to award tracing charges as pleaded.
v. The Learned Adjudicator erred in law and fact in failing to take into consideration the evidence filed by the Appellant in support of special charges.
vi. The Learned Adjudicator erred in law and fact in awarding costs of Kshs.15,000 which is too low under the circumstances.
8. In his written submissions dated 28th November 2025, the Appellant claimed that the trial Court erred in its finding that the payment vouchers produced by the Appellant were not adequate proof of payment and that they didn’t prove the repairs charges were incurred.
9. The Appellant further faults the Trial Court for denying tracing charges saying they were not proven and even if they were there was no nexus between the instant case and the said tracing report.
10. The Appellant lastly faulted the Trial Court for awarding only Khs.15,000/= costs as being too low and order that the same be charged as per the Advocates Remuneration Order 2014.
11. The Appellant relied in two court of appeal cases on the payment vouchers which faulted magistrates court under similar circumstances.
12. The Respondents did not file written submissions in this Appeal.
Analysis and Determination:
13. The jurisdiction of this Court to entertain appeals from the Small Claims Court is strictly circumscribed by Section 38 of the Small Claims Court Act and are limited to matters of law and the appeal is final.
14. Whereas there has been no universally accepted definition of the term ‘matters of law’, there has been some working definitions thereto. The term ‘point of law’ may also be referred to as ‘matter of law’. In Peter Gichuki King'ara vs. IEBC & 2 others, Nyeri Civil Appeal No. 31 of 2013, Court of Appeal held that a decision challenged on the basis of wrongful exercise of discretion raises a point of law.
15. Having said so, since the instant appeal calls upon this Court to ascertain whether the trial Court properly arrived at its decision. The Appellants faults the Trial Court for finding that payment vouchers produced in support of the claim for repair charges were not adequate proof of payment. In their submissions, they have made reference to the invoice issued by the garage and the payment voucher No. 1000203-111305 dated 14/7/2021 showing the principal amount of Kshs.159,030/= was made and in payment voucher No,100203-111304 dated 14.7/2021 shows that Kshs.2,790/= being withholding VAT was made. The Appellant submits that the voucher is signed, date of payment and cheque numbers indicated therein which is sufficient proof that payment was made.
16. The Appellant further submits that the report dated 13th July 2021 confirms the motor vehicle had been repaired satisfactorily and stated that the cost of repairs was Kshs.161,820/=
17. This Court has taken time to study the Record of Appeal so as to establish whether Trial Court erred in holding the amount was not awardable, from page 23 of the record before this Court contains an invoice from Jasen Garage dated 25th May 2021 indicating the amount as Kshs.161,820/=. Page 24 of the record of appeal contains a payment request dated 14th July 2021 voucher No. 100203-111304 for Kshs.159,010.00 and page 25 contains payment request voucher No.100203-111304.
18. The payment voucher contains the following features: Policy No, Claim No., the old claim Number, payee code and the Risk. A description is further given being settlement amount on the claim No.C-2021-9001-27124.These features are similar in the payment request vouchers on page 25 to 30 of the Record of Appeal.
19. This Court has also observed that the Payment request voucher on page 24 bear the stamped dated 15th July 2021 indicating the cheques number 196515.
20. The Court has also looked at the reinspection letter dated 13th July 2021 and notes that it advised the insurance that the motor vehicle was ready to be released and that that final amount payable to the garage is Kshs.161,820/=
21. The Respondents response at the Trial Court was that they were not at fault in any way and asked the Trial Court to dismiss the claim with costs. In their submissions they submitted that the Appellant had not proved the special damages and that its trite law that special damages must not only be specifically pleaded but strictly proved.
22. This Court has looked at how the High Court has handled a similar issue. In Ndungu v M’Ikiao & another (Civil Appeal 182 of 2019) [2022] KEHC 15753 (KLR). The Court held as follows:
“On perusal of claim payment requisition voucher dated July 28, 2016 for Kshs 378,740/= from CIC, I note that it indicates cheque number as 265903 and shows it was authorized by CIC. From the foregoing, I am of the view there is sufficient proof of payment of the repair’s costs to Top Quality Auto Ltd, the garage which repaired the vehicle. The trial magistrate’s finding that there was no prove of payment of the said amount was erroneous. Total payable to appellant is therefore Kshs 378,740/= plus Kshs 36,680/= making a total of Kshs 415,420/=.”
23. In Nakuru Civil Appeal No. 129 of 2019: Julius Kariuki Kimani vs Evanson Kariuki AKA Evanson Mwaniki; The High Court held as follows:
“… the rationale for the rule that special damages must be strictly proved is to police the practise so that the plaintiffs do not represent exaggerated claims not ties to actual losses. The rule is therefore that a party claiming special damages must demonstrate that they actually made payments or suffered specific injury before compensation will be permitted otherwise demonstrate permitted degree of certainty that los or amount he will suffer in future’’
24. Court of appeal in Nkuene Dairy Farmers Co-op Society Ltd & another v Ngacha Ndeiya [2010] KECA 20 (KLR)held that;
“In our view special damages in material damage claim need not be shown to have actually been incurred. The Claimant is only required to show the extent of the damage and what it would cost to restore the damage item as near as possible to the condition it was before the damage complained of’’
25. In lieu of the above and looking at the totality of the evidence availed by the Appellant, this Court is therefore satisfied with the Appellant demonstrated that they are entitled to the award of Kshs.161,820/=
26. This Court therefore sets aside the finding of the Trial Court that disallowed the prayer.
27. This Court will now discuss the prayer for tracing charges which the Trial Court found that the same had not been proved and even if they had proved there was no nexus between the suit and the tracing report.
28. The Appellant submits that the purpose of the report was to help trace the whereabouts of the Respondents and the financial status. They submit that the claim is supported.
29. On this issue this Court is not persuaded that the same was necessary, there are other cheaper ways of ascertaining the status of the Respondents without physically doing all that. This Court is persuaded by the Decision of Mrima J in Kiarie v Shadrack and Sons Limited & another [2025] KEHC 10017 (KLR) -High Court Civil Appeal E762 of 2024, where he held that:
‘’The cost in issue was an unnecessary expense. He ought not to have incurred it simply because liability was on the Respondent.’’
30. For the above reasons, this Court therefore declines to issue the Tracing charges sought by the Appellant.
31. Lastly, this Court will not interfere with the costs awarded at the Trial Court. It is my considered view that the learned magistrate excised her discretion rightfully.
Disposition:
32. In the end, the following final orders hereby issue: -
[a] The Appeal is partly merited.
[b] The Appellant is granted Kshs.161,820/= repairs charges.
[c] The prayer for Tracing charges is declined.
[d] The Order (b) above is subject to the consented liability.
(b) Appellant will have the costs of this Appeal and the one of lower Court.
Orders Accordingly
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 26th day of June 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Obwori h/b Njoroge Learned Counsel for the Appellant.
No appearance for the Respondent.
Michael - Court Assistant.