(Being an Appeal from the Judgment of Hon. Z. K. Kagenyo (Adjudicator) delivered on 5 th February 2025 in Milimani SCCC No. E163 of 2024)
Introduction
1. This appeal arises from the judgment of the Small Claims Court at Milimani ( Z.K. Kagenyo, Adjudicator ) delivered on 5 th February 2025 in SCCC No. E163 of 2024.
2. On or about 13 th January 2021, the appellant’s driver was driving the appellant’s motor vehicle KCH 330R along Thika Superhighway along Kirima drift towards Nairobi City Centre. The 2 nd respondent was driving motor vehicle KCD 988Z, owned by the 1 st respondent, and caused it to hit KCH 330R causing damage.
Factual History
3. Vide a statement of claim dated 12 th January 2024, and under the principle of subrogation, the appellant’s insurer GA Insurance Company Ltd. sued the respondents blaming them for being negligent driving resulting in the accident and damage to the KCH 330R. In total, the appellant claimed Kshs. 447,997/- particularized as follows:
a. Repairs Kshs, 395,908/-
b. Assessor’s charges Kshs. 7,540/-
c. Tracing charges Kshs. 44,549/-
4. By an undated response, the respondents denied the claim instead blaming the appellant’s driver for being negligent by driving without care, at an excessive speed, suddenly encroaching on KCD 988Z’s path, losing control of KCH 330R and causing the accident.
5. The matter proceeded under Section 30 of the Small Claims Courts Act.
6. By a Judgment delivered on 5 th February 2025, the trial court found the 2 nd respondent wholly liable and the 1 st respondent vicariously liable for the accident, as the 2 nd respondent hit KCH 330R from the rear with a clear frontal view of the vehicles ahead of it.
7. As for quantum, the trial court declined to award the same holding that being in the nature of special damages that must be specifically proved and pleaded, there was no evidence that the repair costs and assessor’s fees were actually paid. The tracing charges were equally not awarded on the grounds that the trial court found no nexus between the same and the suit. In the award, the trial court allowed the suit, declined to award damages and awarded costs of Kshs. 30,000/- to the appellant.
The Appeal
8. Dissatisfied with the trial court’s decision, the appellant filed a Memorandum of Appeal dated 27 th February 2025 raising the following grounds of appeal, that the Learned Trial Magistrate erred in law and fact:
i. In dismissing the appellant’s case.
ii. In finding that payment vouchers produced by the appellant were not adequate proof of payment, thereby denying the appellant special damages of Kshs. 447,997/-.
iii. In finding that payment vouchers do not imply actual payment.
iv. In failing to find that the ETR receipts filed were proof of payment.
v. In failing to consider that the appellant had demonstrated through the assessment report, that actual loss of repair charges had been suffered, before arriving at a conclusion to disallow the prayer for compensation of said charges.
vi. In failing to award the claim for tracing charges as pleaded by the appellant by finding that they had not been proved and if they were, there was no nexus between the suit and the tracing report.
vii. In failing to take into consideration, the evidence, authorities and submissions filed by the appellant in support of special damages.
viii. In awarding cost of the suit of Kshs. 30,000/-.
9. Consequently, the appellant urged this Court to allow the appeal, set aside the Judgment of the trial court, reassess damages payable to the appellant, and for costs of the appeal and trial court.
The Appellant’s Submissions
10. In support of his appeal, the appellant filed his submissions dated 27 th January 2026, where the grounds of appeal are crystallized into 3 main issues, whether the trial court erred in law and fact:
a. In finding that payment vouchers produced by the appellant were not adequate proof of payment and that the appellant did not provide proof of special damages incurred.
b. In failing to award a claim for tracing charges as pleaded by the appellant by finding that they had not been proved and if they were, there was no nexus between the suit and the tracing report.
c. In awarding costs of the suit of Kshs. 30,000/- which is low in the circumstances.
11. On the first issue, the appellant submitted that KCH 330R was damaged as per the assessor’s report and later repaired as evidenced by the assessment report. These repairs, in the appellant’s view, were proven through the payment vouchers, while the assessment charges were proven through an invoice and ETR receipts.
12. On the second issue, the appellant urged that the tracing was conducted to ascertain the location of the respondents and whether they could execute against them in the event of a successful suit. This, it is alleged constitutes the nexus between the suit and the tracing. In their view, they are entitled to the tracing charges of Kshs. 44,549/-.
13. On the last issue, the appellant posited that costs of Kshs. 30,000/- are manifestly low viewed against the Advocates Remuneration Order 2014.
The Respondent’s Submissions
14. Despite service, the respondent did not participate in the appeal.
Analysis and Determination
15. I have considered the appeal in light of the evidence on record and written submissions filed on behalf of the appellant. This being an appeal from the Small Claims Court, this Court’s jurisdiction is limited to matters of law pursuant to section 38 of the Small Claims Court Act.
16. I am of the considered view that the appeal turns on 2 issues: whether the trial court applied the correct principles in declining to award special damages and whether the award of costs of Kshs. 30,000/- was so low as to warrant interference by this Court.
17. The appellant’s principal complaint concerns the requirement for proof of actual payment of repair costs, arguing that the said receipts were actually produced. It is trite law that a material damage claim constitutes special damages and must be specifically pleaded and proved. See Bahari (T) Company Ltd. vs Alibhai Ramji Investment Ltd. (Civil Appeal 51 of 2020) [2023] KECA 1284 (KLR). It is also an established principle of law that in material damage claims, actual payment receipts need not be adduced for special damages to be awarded as long as the claimant proves the extent of damage and the cost of restoring the damaged property. An assessor’s report may constitute sufficient proof of the cost of repairs. See Nkuene Dairy Farmers Co-op Society Ltd. & Anor. vs Ndeiya [2010] KECA 20 (KLR), Bahari (T) Company Ltd. vs Alibhai Ramji Investment Ltd., among others.
18. In the present case, the trial court declined the claim for repair costs and assessor’s fees solely on the basis that the appellant had not demonstrated that the amounts had actually been paid. In so doing, it applied the wrong principles with respect to material damage claims. The relevant question was whether the appellant had proved the extent of the damage and the reasonable cost of restoring the vehicle. The assessor’s report dated 27 th January 2021 was therefore relevant evidence in proof of the claim which pegged the estimated repair costs and assessor’s fees at Kshs. 403,448/-.
19. As for the tracing charges of Kshs. 44,549/-, the appellant contends that the expenditure was incurred to establish the respondents’ physical address and financial status. I am satisfied that the expenditure was incurred for purposes directly connected with the prosecution and enforcement of the appellant’s claim and that a sufficient nexus has therefore been established. The claim under this head therefore succeeds. See Shah vs Ndumia & Another (Civil Appeal E725 of 2024) [2026] KEHC 9439 (KLR).
20. On costs, Section 33(1) of the Small Claims Court Act provides that the court may award costs to the successful party. My reading of the provision leads me to conclude that the award of costs is discretionary. That discretion, however, must be exercised in light of the statutory character and purpose of the Small Claims Court. The Small Claims Court was established as a forum for the determination of small-value disputes through simple, expeditious and cost-effective procedures, thereby enhancing access to justice. Section 3(3) of the Act requires the Court to adopt procedures that facilitate the timely disposal of proceedings using the least expensive method, equal access to judicial services, fairness of process and simplicity of procedure. This legislative objective is reinforced by Section 34, which contemplates the expeditious determination of claims.
21. In that context, the discretion to award costs should not be exercised in a manner that undermines the very purpose for which the Small Claims Court was established. An award of costs which is disproportionate to the value and nature of the claim would be inconsistent with the statutory objective of providing accessible, expeditious and inexpensive justice.
22. That said, the principles applicable in interfering with a court’s discretion may be distilled from United India Insurance Co. Ltd. vs East African Underwriters (Kenya) Ltd. [1985] EA:
a. that the Judge misdirected himself in law;
b. that he misapprehended the facts;
c. that he took account of considerations of which he should not have taken account;
d. that he failed to take account of considerations of which he should have taken account; or
e. that his decision, albeit a discretionary one, is plainly wrong.
23. In this case, I understand the appellant to challenge the trial court’s exercise of discretion, arguing that it should have abided by the Advocates Remuneration Order. That contention is misplaced. The applicable regime is the Small Claims Court Act, Rule 37 and the Second Schedule of the Small Claims Court Rules. In light of the foregoing, the matter proceeded pursuant to Section 30 of the Act, with the parties relying on documents and written submissions rather than calling witnesses. The proceedings were therefore conducted through the simplified procedure contemplated by the Small Claims Court regime. I find no error of law or principle in the award of Kshs.30,000/- that would warrant interference by this Court.
ORDERS
24. In the end, the appeal is partially successful. The appellant is awarded special damages in the sum of Kshs.447,997/-. The costs of Kshs. 30,000/- is upheld. The appellant shall have the costs of this appeal.
It is so ordered.
Dated, Delivered and Signed at Nairobi this 17 th day of September 2026.
Introduction
1. This appeal arises from the judgment of the Small Claims Court at Milimani ( Z.K. Kagenyo, Adjudicator ) delivered on 5 th February 2025 in SCCC No. E163 of 2024.
2. On or about 13 th January 2021, the appellant’s driver was driving the appellant’s motor vehicle KCH 330R along Thika Superhighway along Kirima drift towards Nairobi City Centre. The 2 nd respondent was driving motor vehicle KCD 988Z, owned by the 1 st respondent, and caused it to hit KCH 330R causing damage.
Factual History
3. Vide a statement of claim dated 12 th January 2024, and under the principle of subrogation, the appellant’s insurer GA Insurance Company Ltd. sued the respondents blaming them for being negligent driving resulting in the accident and damage to the KCH 330R. In total, the appellant claimed Kshs. 447,997/- particularized as follows:
a. Repairs Kshs, 395,908/-
b. Assessor’s charges Kshs. 7,540/-
c. Tracing charges Kshs. 44,549/-
4. By an undated response, the respondents denied the claim instead blaming the appellant’s driver for being negligent by driving without care, at an excessive speed, suddenly encroaching on KCD 988Z’s path, losing control of KCH 330R and causing the accident.
5. The matter proceeded under Section 30 of the Small Claims Courts Act.
6. By a Judgment delivered on 5 th February 2025, the trial court found the 2 nd respondent wholly liable and the 1 st respondent vicariously liable for the accident, as the 2 nd respondent hit KCH 330R from the rear with a clear frontal view of the vehicles ahead of it.
7. As for quantum, the trial court declined to award the same holding that being in the nature of special damages that must be specifically proved and pleaded, there was no evidence that the repair costs and assessor’s fees were actually paid. The tracing charges were equally not awarded on the grounds that the trial court found no nexus between the same and the suit. In the award, the trial court allowed the suit, declined to award damages and awarded costs of Kshs. 30,000/- to the appellant.
The Appeal
8. Dissatisfied with the trial court’s decision, the appellant filed a Memorandum of Appeal dated 27 th February 2025 raising the following grounds of appeal, that the Learned Trial Magistrate erred in law and fact:
i. In dismissing the appellant’s case.
ii. In finding that payment vouchers produced by the appellant were not adequate proof of payment, thereby denying the appellant special damages of Kshs. 447,997/-.
iii. In finding that payment vouchers do not imply actual payment.
iv. In failing to find that the ETR receipts filed were proof of payment.
v. In failing to consider that the appellant had demonstrated through the assessment report, that actual loss of repair charges had been suffered, before arriving at a conclusion to disallow the prayer for compensation of said charges.
vi. In failing to award the claim for tracing charges as pleaded by the appellant by finding that they had not been proved and if they were, there was no nexus between the suit and the tracing report.
vii. In failing to take into consideration, the evidence, authorities and submissions filed by the appellant in support of special damages.
viii. In awarding cost of the suit of Kshs. 30,000/-.
9. Consequently, the appellant urged this Court to allow the appeal, set aside the Judgment of the trial court, reassess damages payable to the appellant, and for costs of the appeal and trial court.
The Appellant’s Submissions
10. In support of his appeal, the appellant filed his submissions dated 27 th January 2026, where the grounds of appeal are crystallized into 3 main issues, whether the trial court erred in law and fact:
a. In finding that payment vouchers produced by the appellant were not adequate proof of payment and that the appellant did not provide proof of special damages incurred.
b. In failing to award a claim for tracing charges as pleaded by the appellant by finding that they had not been proved and if they were, there was no nexus between the suit and the tracing report.
c. In awarding costs of the suit of Kshs. 30,000/- which is low in the circumstances.
11. On the first issue, the appellant submitted that KCH 330R was damaged as per the assessor’s report and later repaired as evidenced by the assessment report. These repairs, in the appellant’s view, were proven through the payment vouchers, while the assessment charges were proven through an invoice and ETR receipts.
12. On the second issue, the appellant urged that the tracing was conducted to ascertain the location of the respondents and whether they could execute against them in the event of a successful suit. This, it is alleged constitutes the nexus between the suit and the tracing. In their view, they are entitled to the tracing charges of Kshs. 44,549/-.
13. On the last issue, the appellant posited that costs of Kshs. 30,000/- are manifestly low viewed against the Advocates Remuneration Order 2014.
The Respondent’s Submissions
14. Despite service, the respondent did not participate in the appeal.
Analysis and Determination
15. I have considered the appeal in light of the evidence on record and written submissions filed on behalf of the appellant. This being an appeal from the Small Claims Court, this Court’s jurisdiction is limited to matters of law pursuant to section 38 of the Small Claims Court Act.
16. I am of the considered view that the appeal turns on 2 issues: whether the trial court applied the correct principles in declining to award special damages and whether the award of costs of Kshs. 30,000/- was so low as to warrant interference by this Court.
17. The appellant’s principal complaint concerns the requirement for proof of actual payment of repair costs, arguing that the said receipts were actually produced. It is trite law that a material damage claim constitutes special damages and must be specifically pleaded and proved. See Bahari (T) Company Ltd. vs Alibhai Ramji Investment Ltd. (Civil Appeal 51 of 2020) [2023] KECA 1284 (KLR). It is also an established principle of law that in material damage claims, actual payment receipts need not be adduced for special damages to be awarded as long as the claimant proves the extent of damage and the cost of restoring the damaged property. An assessor’s report may constitute sufficient proof of the cost of repairs. See Nkuene Dairy Farmers Co-op Society Ltd. & Anor. vs Ndeiya [2010] KECA 20 (KLR), Bahari (T) Company Ltd. vs Alibhai Ramji Investment Ltd., among others.
18. In the present case, the trial court declined the claim for repair costs and assessor’s fees solely on the basis that the appellant had not demonstrated that the amounts had actually been paid. In so doing, it applied the wrong principles with respect to material damage claims. The relevant question was whether the appellant had proved the extent of the damage and the reasonable cost of restoring the vehicle. The assessor’s report dated 27 th January 2021 was therefore relevant evidence in proof of the claim which pegged the estimated repair costs and assessor’s fees at Kshs. 403,448/-.
19. As for the tracing charges of Kshs. 44,549/-, the appellant contends that the expenditure was incurred to establish the respondents’ physical address and financial status. I am satisfied that the expenditure was incurred for purposes directly connected with the prosecution and enforcement of the appellant’s claim and that a sufficient nexus has therefore been established. The claim under this head therefore succeeds. See Shah vs Ndumia & Another (Civil Appeal E725 of 2024) [2026] KEHC 9439 (KLR).
20. On costs, Section 33(1) of the Small Claims Court Act provides that the court may award costs to the successful party. My reading of the provision leads me to conclude that the award of costs is discretionary. That discretion, however, must be exercised in light of the statutory character and purpose of the Small Claims Court. The Small Claims Court was established as a forum for the determination of small-value disputes through simple, expeditious and cost-effective procedures, thereby enhancing access to justice. Section 3(3) of the Act requires the Court to adopt procedures that facilitate the timely disposal of proceedings using the least expensive method, equal access to judicial services, fairness of process and simplicity of procedure. This legislative objective is reinforced by Section 34, which contemplates the expeditious determination of claims.
21. In that context, the discretion to award costs should not be exercised in a manner that undermines the very purpose for which the Small Claims Court was established. An award of costs which is disproportionate to the value and nature of the claim would be inconsistent with the statutory objective of providing accessible, expeditious and inexpensive justice.
22. That said, the principles applicable in interfering with a court’s discretion may be distilled from United India Insurance Co. Ltd. vs East African Underwriters (Kenya) Ltd. [1985] EA:
a. that the Judge misdirected himself in law;
b. that he misapprehended the facts;
c. that he took account of considerations of which he should not have taken account;
d. that he failed to take account of considerations of which he should have taken account; or
e. that his decision, albeit a discretionary one, is plainly wrong.
23. In this case, I understand the appellant to challenge the trial court’s exercise of discretion, arguing that it should have abided by the Advocates Remuneration Order. That contention is misplaced. The applicable regime is the Small Claims Court Act, Rule 37 and the Second Schedule of the Small Claims Court Rules. In light of the foregoing, the matter proceeded pursuant to Section 30 of the Act, with the parties relying on documents and written submissions rather than calling witnesses. The proceedings were therefore conducted through the simplified procedure contemplated by the Small Claims Court regime. I find no error of law or principle in the award of Kshs.30,000/- that would warrant interference by this Court.
ORDERS
24. In the end, the appeal is partially successful. The appellant is awarded special damages in the sum of Kshs.447,997/-. The costs of Kshs. 30,000/- is upheld. The appellant shall have the costs of this appeal.
It is so ordered.
Dated, Delivered and Signed at Nairobi this 17 th day of September 2026.