- This is an appeal from the Judgment and decree of the Honourable J.W. Mulwa given on 13/2/2023 in Milimani SCC E 2258 of 2022. The Appellant herein was the respondent to the claim in that court.
- The case was a claim for material damage loss for Kshs 159,117/=. The motor vehicle Registration KLN 862T hit the Appellant’s motor vehicle from behind. The motor vehicle was repaired and insurer paid. The Appellant filed a response and blamed the Appellant. Parties files submissions and prayed for the said suit.
- The court heard the respondent, and marked for identification the police abstract and the assessor’s report for identification. The case was subsequently closed without calling the makers of those documents. They sought to rely on section 30 of the small claims court Act, 2016. The said section provides as doth: -
“30. Proceeding by documents only Subject to agreement of all parties to the proceedings, the Court may determine any claim and give such orders as it considers fit and just on the basis of documents and written submissions, statements or other submissions presented to the Court.”
- The court found in favour of the respondent. Upon the case below deciding the Appellant field a 3 paragraphs memorandum of Appeal, the third of which raises no issue. The two remaining grounds are as doth: -
- The Learned Magistrate erred in law by failing to find to find that the claimant had not proved her case having closed it prematurely without calling police officer and assessor.
- The Learned Magistrate erred in law in relying on documents that were not produced in evidence
- The occurrence of the accident was not disputed. The respondent testified while the Respondent did not testify. Two crucial documents were marked for identification and never produced, that is the police abstract and the assessment report. Parties filed extension submissions. However, the only issue that claims is whether a court can in law rely on documents not put in evidence to determine a claim.
Analysis
- The Respondent closed its case before calling the assessor or produced the assessment report and police abstract. The question is not whether there are issues of fact or evidence. It is whether special damages could be proved in case of a balance of probability. 11. The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 as follows:
“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”
- In Palace Investment Ltd vs. Geoffrey Kariuki Mwenda & Another (2015) eKLR, the judges of Appeal held that:
“Denning J. in Miller Vs Minister of Pensions (1947) 2 ALL ER 372 discussing the burden of proof had this to say; -
“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it more probable than not; the burden is discharged, but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will loose, because the requisite standard will not have been attained.”
- This being an Appeal from the small claims court, the duty of the court is circumscribed under 38(1) of the Small Claims Court Act which provides as doth:
(1) A person aggrieved by the decision or an order Appeals. of the Court may appeal against that decision or order to the High Court on matters of law.
- The duty of the court is to defer to the findings of fact of the adjudicator and analyse the matter for issues of law. The issues of law are either due to the subject matter or the finding of law by the court. In the case of Mbogo and Another vs. Shah [1968] EA 93, the court of Appeal stated as doth:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on 12. which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
- An Appeal of this nature can on pure points of law or mixed points of law. It is only points of law it is. An appeal on points of law is akin to a second appeal to the court of Appeal. The duty of a second Appeal was set out in the case of Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] eKLR: -
“This is a second appeal. I am alive to my duty as a second appellate court to determine matters of law only unless it is shown that the courts below-considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.
- What constitutes a point of law? In Twaher Abdulkarim Mohamed v Independent Electoral and Boundaries Commission (IEBC) & 2 others, (2014) eKLR, the court stated as doth: -
“4. Although the phrase ‘a matter of law’ has not been defined by the Elections Act, it has been held in Timamy Issa Abdalla Vs Swaleh Salim Swaleh Imu & 3 Others, Malindi Civil Appeal No. 39 Of 2013 (Court Of Appeal), (Okwengu, Makhandia & Sichale, JJA) of 13.01.2014 that a decision is erroneous in law if it is one to which no court could reasonably come to, citing Bracegirdle vs Oxney (1947) 1 All ER 126. See also Khatib Abdalla Mwashetani Vs Gedion Mwangangi Wambua & 3 Others, Malindi Civil Appeal No. 39 Of 2013 (Court Of Appeal), (Okwengu, M'inoti & Sichale, JJA) of 23.01.2014 following AG vs David Marakaru (1960) EA 484.”
- In Peter Gichuki King'ara Vs Iebc & 2 Others, Nyeri Civil Appeal No. 31 Of 2013 (Court Of Appeal) (Visram, Koome & Odek, JJA) Of 13.02.2014, the court of Appeal held as follows: -
“it was held that it is trite law that the exercise of judicial discretion is a point of law and that the trial court in denying a prayer of scrutiny is exercising judicial discretion. The Court concluded that it would not be feasible for the Court of Appeal to order for a recount and scrutiny as this would involve matters of fact that were within the jurisdiction of the trial court. The court further held that the question of whether the trial judge properly considered and evaluated the evidence and arrived at a correct determination that is supported by law and evidence – with the caveat that the appeal court did not see the witness demeanor – is an issue of law.”
analysis ss
- The main issue for determination in this case is whether the Trial Court erred in law in allowing the Respondent’s suit notwithstanding that crucial documents were not produced.
- A point of law is similar to a preliminary point of law but has a broader meaning. Justice prof J.B. Ojwang J (as he then was) succinctly addressed the issue of preliminary objection in the case of Oraro vs Mbaja [2005] eKLR:
“I think the principle is abundantly clear. A preliminary objection as correctly understood is now well settled. It is identified as, and declared to be the point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. I am in agreement that where a court needs to investigate facts, a matter cannot be raised as a preliminary point.
- The court could be law rules on documents not put in evidence. Section 30 is never involved when parties have not agreed to rely on documents. The assessors report iis the basis for finding on quantum. In the case of David Bagine Vs Martin Bundi [1997] eKLR
“We must and ought to make it clear that damages claimed under the title "loss of user" can only be special damages. That loss is what the claimant suffers specifically. It can in not circumstances be equated to general damages to be assessed in the standard phrase "doing the best I can". These damages as pointed out earlier by us must be strictly proved. Having so erred, the learned judge proceeded to assess the same for a period of nearly three years. There the learned judge seriously erred. Damages for loss of user of a chattel can be limited (if proved) to a reasonable period which period in this instance could only have been the period during which the respondent's lorry could have been repaired plus some period that may have been required to assess the repair costs. There was no evidence before the learned judge of what period the vehicle would have needed for repairs or for assessment of repair costs. The learned judge quite erroneously proceeded to award general damages at the rate of Kshs.500/= per day from the date of accident until date of judgment.”
- Rule 5 of the small claims rules provide as doth: -
“5. (1) A person claiming compensation under section 12 (1) (c) of the Act in respect of a motor vehicle which has been damaged in a road traffic accident or other accident shall attach to the Statement of Claim—
(a) an itemized estimate of the cost of repair prepared by a licenced mechanic or certified motor vehicle assessor; or
(b) an itemised receipt issued in acknowledgement of money paid by the claimant to a licenced mechanic on account of repairs already carried out on the motor vehicle in question.
- This is the document that was dismissed. The court should not have proceeded the way it did. Nevertheless, while the marking of the report was done, the duty to comply with rule 5 arose. Without compliance there is no evidence of loss.
- The next issue was a police abstract. The same goes to liability which is a question of fact. It is not necessary to deal with the question of absence of a police abstract today.
- The court had no jurisdiction to enter Judgment on basis of no evidence. Consequently, the Appeal is merited and accordingly allowed. The court ought to have dismissed the suit in the court below. I therefore set aside the judgment of the Small Claims Court and substitute therewith an order dismissing the claim in the small claims court.
Determination
- THE upshot of the foregoing is that I make the following Orders:
- The Appeal is merited and I accordingly allow the same.
- Consequently, the Judgement and decree of the small claims court in Milimani SCCC E2258 of 2022 is hereby set aside. In the thereof I substitute with an order dismissing the claim on the small claims court with no order as to costs.
- Given that the decision was based on an error of the court each party will bear costs both in this court and the small claims court.
- The file and the small claims court file are hereby closed.
DELIVERED, DATED and SIGNED at Nairobi on this 12th day of April, 2024. Judgement delivered through Microsoft Teams Online Platform.
In the presence of:
Mr Chamwada for the Appellant
M/s Gakuiya for the Respondent
Court Assistant – Michael