The Appellant herein was a rider of motorcycle Registration Number KMGC 573 L along Kisii-Migori road at Ekerorano area on 29th April 2024 when motor vehicle Registration Number KCB 193 C Toyota Axio was allegedly driven so negligently and recklessly and it caused an accident and knocked the Appellant from the rear and he sustained injuries which occasioned great pain, loss and damage for which the 2nd Respondent was held vicariously liable.
The Appellant therefore filed the claim herein seeking to be compensated with special damages of Kshs.459,550/= and general damages for pain and suffering.
The parties agreed by consent to canvass the claim by way of the documents filed and submissions. Upon the Adjudicator considering the pleadings and submissions filed by the parties it was determined that the Claimant did not adduce any evidence to demonstrate how the accident occurred in order for the Adjudicator to apportion blame to the Respondent. It was also determined that there was no evidence to prove that indeed Motor Vehicle Reg. No. KCB 193 C was driven by the 1st Respondent, under the express or implied authority of the 2nd Respondent.
The Adjudicator was guided by the authorities in the case of Benter Atieno Obonyo Vs Anne Nganga & Another [2021] Eklr and P. N. M & Another Vs Telkom Kenya Limited & 2 Others [2015]Eklr to conclude that the Appellant (Claimant) had not proved his case on a balance of probabilities. The claim was therefore dismissed with costs for lack of merit.
The Appellant was not satisfied with the Adjudicators decision and he preferred the appeal herein vide Memorandum of Appeal dated 3rd September 2024 on the following grounds: -
1) That the Learned Adjudicator/ Magistrate erred in fact and in law in refusing to consider submission of the Appellant in its entirety thus occasioning a miscarriage of justice.
2) That the Honourable Learned Adjudicator / Magistrate erred law and fact in failing to consider the fact that the parties had agreed to proceed with the case by way of documents under Section 30 of the Small Claims Court Act, failed to look at the documents in their entirety and thus occasioned a miscarriage of justice.
3) That the Learned Honourable Adjudicator / Magistrate failed to appreciate that the Appellant through the documents filed proved his case on a balance of probability as required by the law.
4) That the Honourable Adjudicator /Magistrate failed to quantify the claim as required by law, both on special and general damages thus occasioning a miscarriage of justice
The Appellant proposed that: -
a) The appeal be allowed with costs
b) The judgement made on 26th August 2024 dismissing the Appellant’s case be set aside and the court be pleased to quantify the amount of general and special damages payable based on the documents filed.
c) That such further orders be made for the ends of justice.
The appeal herein was canvassed by way of written submissions. The Appellant’s submissions are dated 4th December 2024 and are to the effect that the Adjudicator ought to have looked at the documents filed in support of the claim pursuant to Section 32(1) of the Act and even to call for and receive such other evidence and make such other investigations and inquiries as it may require to ensure gaps in the claim are filled to ensure that the ends of justice is met.
The Appellant submitted further that the Adjudicator ought to have presumed the existence of facts which the court thought likely to have happened and that an error was therefore made by dismissing the Appellant’s claim.
The Appellant called upon the court to examine both matters of law and fact as a first appellate court.
The Respondent’s submissions are dated 10th December 2024 and are to the effect that the Appellant failed to prove his case on a balance of probabilities as required to enable the Adjudicator determine who was liable for the accident. The Respondent has equally submitted on facts of the case in the trial court as provided in Section 78 of the Civil Procedure Act and as held in the case of Peter M. Kariuki Vs Attorney General (2014) Eklr
The Appellant also submitted that the Adjudicator failed to quantify damages that he was entitled to and yet the Respondent admitted the fact of the accident in their submissions
Analysis and Determination
Appeals from awards of the Small Claims Court are governed by Section 38 of the Act which provides:
(1) A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law
(2). An appeal from any decision or order referred to in subsection (1) shall be final
The power of the court is set out in Section 38(1) of the Small Claims Act No.2 of 2016. And it is entitled to evaluate the evidence and come up with the decision they believe. The strict rules of evidence do no bind the Court below. This is on the basis of Section 32 of the Small Claims Court, which provides as follows: -
32. Exclusion of strict Rules of evidence(1)The Court shall not be bound wholly by the Rules of evidence.(2)Without prejudice to the generality of subsection (1), the Court may admit as evidence in any proceedings before it, any oral or written testimony, record or other material that the Court considers credible or trustworthy even though the testimony, record or other material is not admissible as evidence in any other Court under the law of evidence.(3)Evidence tendered to the Court by or on behalf of a party to any proceedings may not be given on oath but that Court may, at any stage of the proceedings, require that such evidence or any part thereof be given on oath whether orally or in writing.(4)The Court may, on its own initiative, seek and receive such other evidence and make such other investigations and inquiries as it may require.(5)All evidence and information received and ascertained by the Court under subsection (3) shall be disclosed to every party.(6)For the purposes of subsection (2), an Adjudicator is empowered to administer an oath.(7)An Adjudicator may require any written evidence given in the proceedings before the Court to be verified by statutory declaration.”
The primary objectives of Small Claims Courts in Kenya are to provide a fair, timely, simple, and affordable forum for resolving small financial disputes, enhancing access to justice for the poor and marginalized, and contributing to the ease of doing business where claims are of monetary value of Kshs.1,000,000/= and below. The Appellant having subjected himself to the jurisdiction of the said court which is expected to hear and determine matters within 60 days of filing ought to have been very clear of his claim before the court and should have given oral evidence and subjected to cross examination so that the court is able to weigh the same as against the evidence and/ or response of the Respondents and come up with a conclusive decision as to whether the claim has been proved to the required standards.
Looking at the Appellant’s grounds of appeal in the Memorandum of Appeal dated 3rd September 2024 they prima facie raise questions of fact and not law as required by the Act. The Appellant was aggrieved by the finding of the Adjudicator that there was no evidence in the documents filed to demonstrate how the accident occurred to enable the Adjudicator to decide whether the Appellant or the Respondent was liable and to what extent so as to apportion liability. For this court to delve into interrogating the evidence in the Trial court would amount to re-visiting evidence and it is not this court’s mandate to do so. The fact that parties consented to canvass the claim by way of documents and submissions without consenting to liability and quantum of damages would not entitle the parties to blanket orders without proof of the claim.
The province of evaluating evidence belongs to the Small Claims Court and not this court and therefore I have come to the conclusion that the trial court having exercised its discretion correctly cannot be faulted when there are no issues of law raised that can make this court overturn the said finding.
In Mbogo vs Shah 1968 EA 93 the court held thus: -
“The duty of this court in an appeal against the exercise of that discretion is not to interfere unless the Judge has exercised his or her discretion wrongly in principle or perversely on the facts of the case.’’
The upshot of the foregoing is that the Appeal herein lacks merit and is consequently dismissed with costs.
Dated, signed and delivered at Kisii this 15th Day of May, 2025.