Simon Mbirua Karangu VS Peter Njenga Patrick Simon Mbirua Karangu VS Peter Njenga Patrick

This appeal by way of a memorandum of appeal dated 4/10/2022 arises from a judgment of the Small Claims Court (SCC) delivered on 7/9/2022. The claim at the SCC dated 10/8/2021 by the respondent herein Peter Njenga Patrick (claimant in the SCC) against the appellant (respondents in the SCC) was for total loss of the respondent’s motor vehicle registration number KCD 641Z. It was alleged in the claim that on 12/8/2018 the appellant’s motor vehicle registration number KBS 338Y hit the respondent’s said motor vehicle causing extensive damage to it. The respondent blamed the appellant’s authorized driver, servant and/or agent for negligence and causing the accident. The respondent thereby suffered loss and damage and sought compensation in the SCC against the appellant for the damage and loss to his vehicle in the sum of KShs 630,976/=.
The appellant in his response dated 23/8/2021 denied the respondent’s claim for compensation. He denied that he was the owner of motor vehicle registration number KBS 338Y or that he was driving it on the material day. He further pleaded that he was a stranger to the allegations of damage and loss to the respondent’s vehicle as alleged in the statement of claim. He raised a plea of alibi contending that at the time of the alleged accident, his motor vehicle registration number was in a garage for repairs, having been delivered there on 10/8/2018 and it only left on 16/8/2018 and therefore could not have been on the road on 12/8/2018 when the accident is alleged to have occurred. In the alternative he laid blame for the accident upon the respondent claiming that he was negligent in his manner of driving his motor vehicle.
Each of the parties filed witness statements and documents to support his case.
The claim before the SCC proceeded on the basis of documents statements, and written submissions filed by the parties as provided for under section 30 of the SCC Act.
Upon considering the material before him, the learned Adjudicator found that the respondent had proved his claim. He found the appellant wholly liable for the accident. He entered judgment for the respondent in the sum of KShs 630,976/= against the appellant with costs.
Dissatisfied with the learned Adjudicator’s decision the appellant now appeals to this court setting out four grounds of appeal in his memorandum and praying that the appeal be allowed and the judgment of the learned trial Adjudicator be set aside and the claim be dismissed. The grounds are that the learned trial Adjudicator erred in law:
1. in holding that the appellant was 100% liable without justification.
2. in failing to give reasons for his findings on liability.
3. in failing to analyse the evidence and the submissions of the appellant in addressing the issues raised thereby misleading himself on the findings derived therein and
4. that the exercise of discretion by the learned Adjudicator (not magistrate) was injudicious and contrary to the established law so as to occasion grave injustice to the appellant.
The appeal was canvassed by way of written submissions filed by learned counsels for both parties.
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.
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.
On an appeal on points of law only the appellate court is not permitted to interfere with the findings of fact by the trial court unless the decision is bad in law and cannot be supported by the evidence tendered. On that issue the Court of Appeal in M’Riungu v. Republic [1983] KLR 455, held thus:

“where a right of appeal is confined to question of law, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of fact and law and it should not interfere with the decision of the trial court or the first appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law”.

The appellate court may however interfere with the findings of the trial court where it is demonstrated that there was no evidence at all upon which such findings were based or that the evidence relied upon was of such a nature that no reasonable tribunal, properly addressing its mind on it, could have made such findings as has been held in numerous decisions. (see for instance Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others [2014] eKLR.
The parties agreed to have their case disposed of on the basis of documents, statements and written submissions, as provided for under section 30 of the Act.
Since the High Court will ordinarily not be seised of the facts presented before the SCC, given the almost informal manner in which its proceedings are expected to be conducted, it follows that it cannot proceed with the case by way of a rehearing and re-evaluation of evidence as is the norm in normal civil matters. I note that under section 41 of the SCC Act, the trial court has jurisdiction to review its orders or awards where there was an error of law on the face of the record. Perhaps, parties would be advised to better take this route before making their way to the High Court on appeal because when the matter lands on the High Court desk on appeal, it will be determined on the narrow parameters of issue of law as circumscribed by the SCC Act.
The material placed before the court in support of the claim by the claimant through his witness statement dated 10/8/2021 and that of his witness James Mandare, a business claims officer with Sanlam Insurance Company was that the claimant while driving his vehicle along Thika road at Garden city came across the respondent’s vehicle that was dropping passengers. Upon noticing the respondent’s vehicle, the claimant applied brakes suddenly but it was too late and he bumped into the rear of the respondent’s vehicle thereby causing extensive damage to his vehicle. It was subsequently declared a total loss after valuation and assessment as per the valuation report filed among the claimant’s documents. After police investigations, it was concluded, as per the police abstract also filed in the documents that the appellant’s vehicle was to blame for the accident. An assessment report of the damage was prepared after the vehicle underwent evaluation. It was found to be a total loss. Its pre-accident value was KShs 866,000/=. The salvage was however disposed of at KShs 300,000/= thereby reducing the loss to KShs 566,000/. Sanlam Insurance compensated the claimant for the loss. Other incidental costs following the accident were:
1. tracing the appellant as owner of the other vehicle KShs 22,680/=
2. courtesy car hire for the respondent KShs 30,000/=.
3. storage charges KShs 12,296/=.
4. investigation fee KShs 20.850/=

Total KShs 651,826/=.

According to my calculation the total cost would be KShs 651,826/= but since parties are bound by their pleadings I would go by the total cost pleaded and claimed of KShs 630,976/=.
The claimant filed various documents in support of the claim and none of them was disputed by the respondent.
The suit was filed by Sanlam Insurance Company to enforce its rights of subrogation, having fully compensated the claimant for the loss.
For the appellant, he relied on the witness statement of Simon Mbirua Karangu, the appellant as owner of the vehicle, Ezekiel Macharia, the usual driver of the vehicle, and Jackson Ngada a mechanic at a garage in Kariokor who recorded that the appellant’s motor vehicle registration number KBS 338Y was at his garage undergoing repairs, panel beating and spray-painting from 10/8/2018 to 16/8/2018. It was delivered there and collected by the driver. The appellant filed as evidence two receipts from Block Master Auto Garage, one dated 10/8/2018 and the other dated 16/8/2018 as payment for the works done on the vehicle when it was at the garage.
The first port of call in this appeal is to understand the working of the SCC. In my understanding of the Small Claims Court Act (Cap. 10A) Laws of Kenya (SCC Act), a claim under the Act is a small not just limited in the name or the monetary value or jurisdiction of the court but also small or limited in terms of the procedures of lodging and prosecuting the claim, in terms of evidence taking and evaluation, the timelines for the hearing and determination, 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 judicial officers who preside over it. In Kenya however, the presiding judicial officer is an Adjudicator with full legal training and applies the law to determine disputes but in a simple way almost informally and expeditiously as per the SCC Act. So, when a party subjects its claim before this court, let it be prepared to abide by the constitutive elements of this court which guide hearing and disposal of claims.
These elements are for instance as outlined under section 3(3) of the Act where it is provided that the Court shall adopt such procedures as the Court deems appropriate to ensure inter alia the timely disposal of all proceedings before the Court using the least expensive method and simplicity of procedure. The court is, therefore, under section 17 of the Act granted the discretion to control its own procedure in conformity with the Act in the determination of claims before it and, in the exercise of that control, the Court shall have regard to the principles of natural justice. Moreover, under Section 32 of the Act the strict evidentiary rules applicable in other courts are not wholly applied in the Small Claims Court. It is further provided that the Court may admit as evidence any oral or written testimony, record, or other material even though the same is not admissible as evidence in any other Court under the law of evidence. Considering these elements of the SCC it would appear to me that the manner of proof of a claim in a SCC is as per the appreciation of the claim by the Adjudicator who is seized of the matter properly applying her mind to the facts and law of the case having observed the rules of natural justice as provided under the Act and not being held captive by the strictures of the normal civil case processes.
This is because the SCC Act exempts the court proceedings from the rigid application of the standards of evidence applicable in other court proceedings and permits the court to include as evidence any material that it deems credible or trustworthy. It is upon the Adjudicator to determine the material to rely upon. To this end, the method and style of the SCC has been referred to as “unceremonious” by Bruce Zucker and Monica Her in their seminal paper “The People\'s Court Examined: A Legal and Empirical Analysis of the Small Claims Court System.” It is a court bereft of procedural technicalities. Thus, the case before a SCC is a claim and not a suit.
In that case, it is my thinking that broadly a claim before the SCC would largely proceed by way of negotiation for settlement rather than a trial. The SCC would be the place where ADR taking the form of negotiation would be the primary mode of disposal of the disputes. Considering the constitutive elements of the SCC as provided for under the Act, a hearing would be resorted to only on very limited issues where parties have failed or are taking long to reach a settlement through negotiations.
For instance, in cases of negligence, there are many instances where parties have an agreement on apportionment of liability. In road traffic accident cases, the remaining issue would be the assessment of damages. If that is the point at which parties bring their claim to the SCC or where the SCC has guided the parties through a negotiated settlement on liability and the parties do not seem to agree on damages, it is easy for the court to consider the medical reports presented, then using a template on comparable injuries it can there and then point out to the parties the range of general damages that it is likely to award if they are not settling. Where there is only one medical report it is easy then for the court to base its award on the extent of injuries as per the report. Where there are two or more reports with markedly deferring findings by the doctors, the SCC will point out the contentious issue within the report and then probably ask the parties to present the doctors for say cross-examination only on the contested issues. Once clarity is found from the expert witness, the court can proceed to pronounce its award on general damages at once.
In my understanding therefore, the SCC should be a court of settlement rather than a trial court, the Adjudicator’s work being to superintend on the negotiations rather than hold laborious hearings and come up with “considered judgments” as is expected in the trials before magistrates courts. Without appearing to limit the jurisdiction of the SCC as laid out in the Act I believe that matters that go before it should almost be what is termed “plain and obvious” cases that can be dealt with summarily and which do not require “evidentiary proof” as is the case in the other trials before magistrates courts. There and then, the court will make a finding and issue a decision at once as is provided under section 34(1) and (2) of the Act where decisions are expected to be delivered the same day the hearing is concluded. That is only possible where the court and the parties appreciate and adhere to the constitutive elements of the court under the Act.
In such cases, appeals arising therefrom will be properly on points of law for instance, to set aside the settlement on the laid down principles of setting aside an agreement. Thus, appeals to the High Court are only on issues of law and the appeal is final.
Otherwise, issues that come for appeal will continue to be blurred as mixed fact and law and since courts are not wont to dismiss cases summarily, many will proceed by way of retrial, rehearing and re-evaluation of evidence even when it is clear that they ought not to.
Take for instance the present case. There was no hearing in the strict sense and therefore no evidence taken before the learned trial Adjudicator since no witness was sworn to adduce, produce or even adopt any prior written statements as evidence. The appellant now complains that the learned trial Adjudicator failed to analyze the evidence and submissions. Which evidence was to be analyzed$1 The submissions could only be analyzed in light of the materials presented before the court, the statements of witnesses. In a SCC the Adjudicator has a wide discretion on which material to rely upon in arriving at his or her decision. In doing so, he does not even need to offer any analysis or reasons because that is not provided for in the SCC Act. That in my thinking is why section 34(2) of the Act provides that judgment given in determination of any claim shall be delivered on the same day and in any event, not later than three (3) days from the date of the hearing. There is no court that can render a considered decision the same day of the hearing where tens of cases are concluded before that court as in the Small Claims Court. That is why in my thinking the spirit behind the SCC is one of negotiation and settlement and hearings become an exception and even then on very narrow issues that can be disposed of in no more than three days as provided for under the Act. That is why under the Guiding Principles of the Court under section 3(2), the parties and their duly authorized representatives, are directed (shall) to assist the Court to facilitate the observance of the guiding principles set out under the section, to participate in the proceedings of the Court and to comply with directions and orders of that Court. The court is expected to guide the parties and give directions at every turn as the negotiations take place. The negotiations would take place on a day to day basis until a settlement is had. In that case, 60 days are sufficient to complete the hearing and determination of the claim. When the negotiations are taking place, the court’s duty would be to ensure that rules of natural justice are adhered to as provided for under section 17 of the Act. In doing so the court will ensure that each party has an equal opportunity to access judicial services and there is fairness of process as provided for under section 3(b) and (c) of the Act.
For me therefore, the SCC is a court where parties go for a negotiated settlement. Essentially, parties have largely agreed on the issues and one is either dragging its feet on settlement or they are unable to agree on some mundane or very limited issues and the court steps in to give guidance or through its coercive power brings authority to bear upon the parties and complete the settlement in a timely manner (see section 3(a) of the Act). No doubt, negotiation becomes the least expensive method of disposal of the dispute (section 3(a)).
All this should be done in good faith and openness to amicable settlement of the claim.
The other ground of appeal is that the learned Adjudicator failed to analyze the evidence and submissions and to give reasons for his findings. There is no such requirement under the SCC Act as is contained in the Civil Procedure Rules. Rule 23(4) of the SCC Rules provides that at the end of the hearing, the Court shall prepare a written record of its decision in final determination of the claims before it and (a) pronounce its decision in accordance with section 34(2) of the Act; or (b) send a copy of its written decision to the parties. This is unlike Order 21 Rule 4 of the Civil Procedure Rules which provides that “Judgement in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision.”
There is one other instance in the judgment which in ordinary civil suits would have caused this court to dismiss the claim as filed but since it was before the SCC which is not bound by the CPA and Rules or the strict rules of evidence, this court has to content with the findings of the learned Adjudicator. It is a rule of law that parties are bound by their pleadings and will not be allowed to depart from what is pleaded in their evidence to prove the case and if they do depart, that part of the evidence will be ignored. This issue is succinctly covered in the case of Ogando v Watu Credit Limited & another (Civil Suit E098 of 2022) [2024] KEHC 3074 (KLR) (14 March 2024) (Judgment) where the High Court, Magare, J. captured it citing a Tanzanian case of Salim Said Mtomekela Versus Mohamed Abdallah Mohamed, Dar-Es-Salaam Court of Appeal Civil Appeal No. 149 of 2019 (Mugasha. J.A. Kihwelq. J.A. Rumanyika. J.A where it was held that:

“Pleading in law means, written presentation by a litigant in a law suit setting forth the facts upon which he/she claims legal relief or challenges the claims of his opponent. It includes claims and counterclaim but not the evidence by which the litigant intends to prove his case … That said, since the pleading is a basis upon which the claim is found, it is settled law that, parties are bound by their own pleadings and that any evidence produced by any of the parties which is not supportive or is at variance with what is stated in the pleadings must be ignored. See Barclays Bank (T) Vs Jacob Muro, Civil Appeal No. 357 of 2018 [where] the Court cited with approval a passage in an article by Sir Jack I.H. Jacob bearing the title,

\"The Present Importance of Pleadings\", first published in Current Legal Problems (1960) at p. 174 whereby the author among other things said: \"As the parties are adversaries, it is left to each one of them to formulate his case in his own way subject to the basic rules of pleadings... for the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he as to meet and cannot be taken by surprise at the trial. The court itself is as well bound by the pleadings of the parties as they are themselves. It is not part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings...\"

In the claim the subject of the appeal herein, the claimant (respondent herein) pleaded that the respondent’s (appellant herein) vehicle hit his motor vehicle registration number KCD 641Z and caused extensive damage to it. In his witness statement the respondent however stated that the appellant’s motor vehicle was dropping passengers along the way when the respondent herein noticed it and suddenly braked but it was too late and he bumped into the rear thereby damaging his car. In short, the respondent’s vehicle rammed into the appellant’s vehicle.
On his part the appellant’s principal response was that he was not the owner of the other accident vehicle registration number KBS 338Y. He then in the alternative, pleaded negligence against the respondent. But in his entire statement of response from himself and his witnesses, his defence was one of alibi, that his vehicle was not on the road at the material time as it was in a garage and so could not have been involved in the accident.
It is apparent from the above pleadings and witness statements by both the respondent (claimant in the SCC) and the appellant (respondent in the SCC) that their statements were out of sync with their pleadings. Under the normal civil procedural rules, both the claim and the response thereto were for dismissing with each party ordered to bear his costs.
Else, in a suit filed in the magistrate’s court following the CPR and the strict rules of evidence, perhaps at some point, the parties could have been allowed to amend their pleadings and align them with their witness statements in which case, a portion of liability would have been made against the respondent for failing to be on the look out for the vehicles ahead of him. Perhaps liability would even have been apportioned in the ratio of 50:50.
But this being a claim before the SCC, the court having control of its own procedure in the determination of claims before it but having regard to the principles of natural justice, not being bound wholly by the rules of evidence and the parties having agreed that the matter be disposed of by way of statements, documents and submissions filed which were not subjected to oath or affirmation and cross-examination, the court has the discretion to consider the material before it and decide which one is persuasive to it and make its determination expeditiously.
I am satisfied that considering the material before him, the learned Adjudicator properly applied his mind to the material and arrived at a sensible decision in the circumstances under the constitutive elements of the SCC in finding the appellant 100% liable for the accident. Whereas in a magistrate’s court the matter, remaining as presented through the pleadings and evidence taken may have gone a different way, in the case of the SCC the decision is sensible. I do not find reason to fault the decision.
Consequently, I find the appeal has no merit and it fails. The order of the learned trial Adjudicator is affirmed in its entirety.
The respondent shall also get the costs of this appeal assessed at KShs 30,000/=.
Delivered, dated and signed at Milimani on the Virtual Platform, Teams this 17^th day of September 2024.