https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12403

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **CIVIL APPEAL NO. E132 OF 2025** **BEATRICE AUMA OPONDO …………………………………… APPELLANT** **VERSUS** **SIROCCO INVESTMENT COMPANY LIMITED** **C/O JAGDISH KOTECHA …………………………………….... RESPONDENT** *(Being an appeal from the Judgment and Decree of Hon. G. C. Serem, Resident Magistrate/Adjudicator, delivered on 9th May 2025 in Kisumu Small Claims Court Claim No. E453 of 2024)* **JUDGMENT** **BACKGROUND** 1. This appeal is narrow in monetary value but important in principle. It concerns the treatment of a documentary receipt in the simplified evidential regime of the Small Claims Court; the distinction between the legal burden and the evidential burden; and the boundary between an impermissible appeal on matters of fact and a permissible appeal on matters of law under Section 38 of the Small Claims Court Act. The Appellant does not challenge the finding on liability. Her complaint is that, after finding the Respondent wholly liable for the accident and accepting one component of her claim, the trial court rejected the claim for Kshs. 46,250 on the stated basis that no actual proof of payment had been produced, although an Old Mutual General Insurance Kenya Limited receipt was in evidence. 2. The accident herein occurred on 1st July 2024 at about 2.00 p.m. along Obote Road, Kisumu. The Appellant was the owner of motor vehicle registration number KDP 530E, a Mazda Axela. It was being driven by her husband, David Haggaih Otieno Alaka. Her case was that the vehicle was stationary when the Respondent’s Toyota Land Cruiser registration number KAX 999V struck it from the rear. The Respondent pleaded the converse: that the Appellant’s driver reversed into KAX 999V. The Respondent, however, called no witness at the hearing. The Adjudicator found the Respondent liable. That finding has not been appealed and is not open for reconsideration here. 3. The procedural and documentary chronology matters. The original Statement of Claim was dated 8th October 2024. It followed a demand letter dated 15th September 2024 which demanded Kshs. 64,728 as repair costs and Kshs. 10,000 as collection fees. The Respondent filed a Response to the Statement of Claim dated 14th November 2024. It denied liability, alleged that motor vehicle registration number KDP 530E had reversed into the Respondent’s stationary vehicle, and prayed that the claim be dismissed with costs. 4. On 4th December 2024 the Appellant moved the Small Claims Court for leave to amend the Statement of Claim. The Notion of Motion Application and the draft amended claim were both dated 4th December 2024. The amendment replaced the earlier figure with a claim for Kshs. 56,250 as compensation for damage to property arising from the accident of 1st July 2024. On the same date, David Haggaih Otieno Alaka made a further witness statement explaining the composition of that sum. He stated that he had paid Kshs. 46,250 to the Appellant’s insurer before repairs could commence and that the Appellant had incurred Kshs. 10,000 in advocates’ professional fees. He described the first payment as “excise duty.” Whether that description defeated an otherwise documented payment is one of the questions arising in this appeal. 5. The contemporaneous documents included a police abstract dated 1st July 2024; Old Mutual’s repair authority dated 25th July 2024 addressed to Sunshine Automobiles and identifying the insured as the Appellant, the insured vehicle as KDP 530E, and repair costs of Kshs. 64,728; an Old Mutual receipt dated 21st August 2024 for Kshs. 46,250; an advocates’ receipt dated 8th October 2024 for Kshs. 10,000; and a copy of records showing the Appellant’s ownership of KDP 530E as at 28th November 2024. The Old Mutual receipt bears receipt number MPSCP0015984. It names “BEATRICE AUMA OPONDO,” records payment of Kshs. 46,250 by M-Pesa, identifies the payer as “DAVID,” gives the account as KDP 530E, and carries policy number 03007010026202024. 6. At the hearing, the Appellant and Mr. Alaka testified. The trial judgment records their evidence that Kshs. 46,250 had been paid to the insurer and Kshs. 10,000 to the advocates. The Respondent tendered no oral evidence. In its judgment delivered on 9 May 2025, the trial court found the Respondent liable because the Appellant’s evidence on the occurrence of the accident had not been rebutted. On quantum, it awarded Kshs. 10,000 as professional fees, relying on **Nickson Majani Idagasi v Attorney General [2014] KEHC 3849 (KLR)**, but rejected the insurance payment. Its material finding was: ***“On payment of excess, the court states that the claim herein did not proof [sic] anything to show that there was communication from the insurance for payment. Further, the actual payment and or proof of payment was not availed and hence the Kshs. 46,000/- excess was not proved.”*** 1. The resulting award was Kshs. 10,000. Each party was ordered to bear its own costs, and a stay of execution of thirty days was granted. The figure rejected in the quoted passage was stated as Kshs. 46,000 although the amended claim, oral evidence and receipt were for Kshs. 46,250. 2. Aggrieved, the Appellant filed a Memorandum of Appeal dated 5th June 2025. The Appeal was canvassed by way of written submissions. **THE APPEAL** 1. The four grounds of appeal in the Memorandum of Appeal dated 5th June 2025 are as follows: 2. That the learned Magistrate erred in law and fact by failing to consider the evidence on record thereby arriving at a wrong conclusion. 3. That the learned trial magistrate erred in law and in fact by failing to properly consider the evidence presented by the Appellant, which sufficiently proved that a sum of Ksh. 46,250 was paid to the insurance company. 4. That the learned trial magistrate erred in law and in fact by disregarding the receipt issued by Old Mutual General Insurance Kenya, which clearly demonstrated that the said payment was made. 5. That the Learned Magistrate erred in Law and in fact by failing to find that the evidence adduced in court both orally and records by Plaintiff/Appellant is sufficient proof of money paid to the insurance. 6. The Appellant prayed that the appeal be allowed; that the judgment delivered on 9th May 2025 be set aside; and that she be awarded the costs of the appeal. Read fairly and as a whole, the relief sought is that the claim for Kshs. 46,250 be allowed, not disturbance of the unchallenged finding on liability. **THE SUBMISSIONS** 1. The Appellant’s position, apparent from the Memorandum of Appeal and the issues submitted on by the Respondent, was that the Adjudicator failed to consider material evidence; that the Old Mutual receipt proved payment of Kshs. 46,250; and that the oral and documentary evidence met the civil standard. The Respondent submits that the Appellant relied on **Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123** and section 107 of the Evidence Act. As will shortly become clear, the ordinary first-appellate formulation in **Selle** (Supra) must be read subject to the special and narrower jurisdiction created by Section 38 of the Small Claims Court Act. 2. The Respondent submitted that Section 38 confines this Court to matters of law. It cited **Jackson Moseti versus Sam & another, Kisumu HCCA No. E094 of 2025**, for that proposition. It argued that the trial court had made a reasoned factual finding, and that this Court could not reweigh the evidence merely because it might reach a different conclusion. 3. On pleading, the Respondent argued that the amended Statement of Claim dated 4th December 2024 sought a global sum of Kshs. 56,250 without pleading a policy excess; that the demand letter dated 15th September 2024 had instead sought repair costs of Kshs. 64,728; and that parties are bound by their pleadings. Reliance was placed on **Kerai v Mudaliar & another (Commercial Case E184 of 2022) [2024] KEHC 15748 (KLR) (Commercial and Tax) (6 December 2024) (Ruling)**. 4. On proof, the Respondent contended that the Old Mutual receipt did not show that Kshs. 46,250 was policy excess, its claim-number field was blank, and the payment could have been an insurance premium or some other sum. It submitted that the Appellant ought to have called a representative of the insurer. It further argued that Mr. Alaka called the sum “excise duty,” which would ordinarily be payable to the Kenya Revenue Authority rather than an insurer. The Respondent maintained that its failure to call a witness did not relieve the Appellant of her burden of proof. 5. The Respondent also contended that, if the insurer paid for the repairs, recovery should have been pursued through subrogation. Separately, it invited this Court to disallow the Kshs. 10,000 awarded as professional fees. It had, however, filed neither a cross-appeal nor any other formal challenge to that part of the judgment. **ANALYSIS AND DETERMINATION** 1. Four questions arise: first, whether the complaint about the receipt raises a matter of law within Section 38; second, whether the claim for Kshs. 46,250 was sufficiently pleaded in the particular statutory and procedural setting of the Small Claims Court; third, whether it was proved to the applicable standard; and fourth, whether this Court may disturb the award of Kshs. 10,000 at the Respondent’s prayer in submissions alone. 2. **Whether the complaint about the receipt raises a matter of law within Section 38** 3. Section 38 of the Small Claims Court Act is the starting point. It 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.”*** 1. This is not an ordinary first appeal by way of retrial. This Court must accept primary findings of fact unless the asserted error is one of legal interpretation, application of law to established evidence, or a conclusion unsupported by evidence or so perverse that it becomes an error of law. The Supreme Court’s holding in **Munya versus Kithinji & 2 others (Petition 2B of 2014) [2014] KESC 38 (KLR) (30 May 2014)**, although made in the context of an election appeal limited to matters of law, provides authoritative guidance on the same statutory expression. At paragraphs 80 and 81, the Court stated: ***“From the foregoing review of the comparative judicial experience, we would characterize the three elements of the phrase ‘matters of law’ as follows: (a) the technical element: involving the interpretation of a constitutional or statutory provision; (b) the practical element: involving the application of the Constitution and the law to a set of facts or evidence on record; (c) the evidentiary element: involving the evaluation of the conclusions of a trial Court on the basis of the evidence on record.”*** ***“…the phrase ‘matters of law only’ means a question or an issue involving … the application of a provision of the Constitution, an Act of Parliament, Subsidiary Legislation, or any legal doctrine, to a set of facts or evidence on record … [or] the conclusions arrived at by the trial Judge … where the appellant claims that such conclusions were based on ‘no evidence’, or that the conclusions were not supported by the established facts or evidence on record, or that the conclusions were ‘so perverse’, or so illegal, that no reasonable tribunal would arrive at the same; it is not enough for the appellant to contend that the trial Judge would probably have arrived at a different conclusion on the basis of the evidence.”*** 1. The grounds as drafted use the conventional phrase “law and fact,” but jurisdiction depends on substance rather than that label. The Appellant identifies a specific receipt and says the Adjudicator reached the conclusion that no proof of payment had been availed despite that exhibit. She further challenges the legal demand for prior communication from the insurer and the treatment of documentary proof under the Small Claims Court Act. Those are not invitations to decide which witness was more credible. They allege a conclusion unsupported by the record and a misapplication of the law on proof. Properly framed, they are matters of law under Section 38. 2. **Whether the claim for Kshs. 46,250 was sufficiently pleaded in the particular statutory and procedural setting of the Small Claims Court** 3. The Respondent’s pleading objection is one that cannot be ignored. A court cannot award an unpleaded special damage merely because a receipt exists. The requirement serves fair notice: a defendant must know the monetary case it has to meet. It is also reflected in Section 24 of the Small Claims Court Act, whose material terms are: ***“Every statement of claim shall contain the following particulars- … (c) the nature of the claim; (d) the sum of money claimed by each claimant or person represented; (e) the relief or orders sought; and (f) other particulars of the claim as are reasonably sufficient to inform the respondent of the ground for the claim and the manner in which the amount claimed by each claimant or person represented has been calculated.”*** 1. The governing common-law rule is equally settled. In **Abdi Ali Dere versus Firoz Hussein Tundal & 2 others (Civil Appeal 310 of 2005) [2013] KECA 167 (KLR) (20 September 2013)**, the Court of Appeal, while considering special damages following a motor accident, restated the rule in these terms: ***“It is simply not enough for the respondent to pluck figures from the air and throw them in the face of the court and expect them to be awarded. It is trite that special damages must not only be claimed specially but proved strictly for they are not the direct and natural or probable consequences of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and the nature of the acts themselves.”*** 1. The amended Statement of Claim dated 5th December 2024 claimed an exact sum, Kshs. 56,250, as compensation for property damage arising on 1st July 2024. Standing alone, that global figure/aggregated sum did not optimally state its two components. It must, however, be read in its actual procedural setting. The amendment was accompanied by Mr. Alaka’s further statement of the same date. That statement expressly broke down the claim into Kshs. 46,250 paid to Old Mutual and Kshs. 10,000 paid as professional fees. The two receipts supporting those exact figures were in the Appellant’s bundle. The Respondent’s own appellate submissions analyse each component separately, identify the date of the further statement, and attack the Kshs. 46,250 as both “excise duty” and policy excess. There was consequently no uncertainty at the hearing about the monetary case being advanced and no trial by ambush. 2. The approach to an amended pleading and pre-hearing notice was addressed by the majority in **Micro-City Computers Limited & another versus National Social Security Fund Board of Trustees & Another (Civil Appeals 49 and 59 of 2020 (Consolidated)) [2024] KECA 444 (KLR) (12 April 2024).** At paragraphs 47 and 48, Nyamweya JA stated: ***“Once a plaint is amended, it speaks from the commencement of the action. The writ as amended becomes the original commencement of the action, notwithstanding the fact that the writ originally claimed a larger sum. Leave to amend involves that the claim as amended may be treated as if it were the original claim in the action.”*** ***“It follows that upon the further amendment to the plaint, the said pleading related back to the time when the original plaint was filed and as long as there was evidence on record in support of the further amended plaint, this plaint could properly form the basis upon which judgment could be based. Without an appeal having been lodged against the ruling allowing the amendments, the trial court would not have had any justification for ignoring the further amended plaint.”*** 1. The Respondent’s reliance on **Kerai versus Mudaliar & another [2024] KEHC 15748 (KLR)** does not alter that conclusion. In that case, the applicants omitted grounds for review from their application and first advanced them in submissions after the impugned matter had already been determined. Mabeya J held at paragraph 12: **“The applicant did not, however set out the grounds for the review of the said orders. They only raised the grounds of review at the submission stage. It is trite that parties are bound by their pleadings and any issues or evidence raised at submission stage that was not in the pleadings is immaterial.”** 1. Here, the Kshs. 46,250 was not first raised in closing submissions. It appeared in the further witness statement dated 4th December 2024, the receipt dated 21st August 2024, and the amended total claimed before the witnesses testified. The amendment reduced and reformulated the earlier demand; it did not conceal an additional claim after the evidential contest had closed. In the special statutory context - an exact amended sum, a contemporaneous written breakdown, supporting receipts, and demonstrated notice to the Respondent - the requirements of Section 24(d) and (f) and the substantive rule on pleading special damages were met. This conclusion does not dilute the rule. It applies its object: sufficient particularity and fair notice in the circumstances. 2. **Whether the claim for Kshs. 46,250 was proved to the applicable standard** 3. Sections 107, 108 and 109 of the Evidence Act state the governing burden of proof: “107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 1. The Appellant therefore bore the legal burden throughout. The Respondent is correct that its failure to call evidence did not automatically entitle the Appellant to judgment. But it is necessary to distinguish the unchanging legal burden from the shifting evidential burden. In **Mbuthia Macharia versus Annah Mutua Ndwiga & another (Civil Appeal 297 of 2015) [2017] KECA 290 (KLR) (29 September 2017)**, the Court of Appeal explained at paragraphs 15 and 16: ***“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose.”*** ***“The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced.”*** 1. That general law operates within the Small Claims Court’s deliberately simplified evidential regime. Section 32 of the Small Claims Court Act provides: ***“(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.”*** 1. Section 32 does not abolish the burden of proof and does not convert every paper into conclusive evidence. It changes the route by which reliable material may be received and evaluated. The Adjudicator had to decide whether the receipt and the surrounding record were credible and trustworthy and, taken together, made it more probable than not that the Appellant had incurred the payment because of the insured accident. If clarification from the insurer was indispensable, Sections 28(3) and 32(4) empower the court to summon a person or seek further evidence. The Act did not make the insurer’s oral attendance an inflexible precondition to reliance on its receipt. 2. The receipt was direct evidence of actual payment, not a quotation, an unendorsed invoice, or an internal estimate. The Court of Appeal’s treatment of payment documents in **Abdi Ali Dere** (Supra) is particularly apposite to the instant case. Rejecting a blanket holding that payment vouchers were not evidence, the Court stated: ***“In our opinion it is not correct to say, as the trial court did, that in all and sundry cases a payment voucher cannot be evidence of payment. The term ‘voucher’ derives from the word ‘vouch’, meaning ‘to confirm or assure’. The term ‘voucher’, in regard to payment, has at least two distinct meanings. It can mean a written authorization to pay or disburse money. It can also mean confirmation of payment. In the latter sense, a payment voucher is not any different from a receipt. In many daily and official transactions, payees do not walk around with receipts to issue in acknowledgement of payment. They merely counter sign the payment voucher to signify payment…”*** ***The Court then distinguished an invoice, observing that “an invoice is not a receipt for goods supplied unless it is specifically endorsed to the effect that the goods for which [the] invoice was prepared were paid for.”*** 1. The Old Mutual document goes further: it is expressly headed “RECEIPT.” It records a receipt number, date, named recipient, amount, payment method and transaction reference. Accordingly, the Adjudicator’s categorical statement that “actual payment and or proof of payment was not availed” is not a debatable preference between competing factual accounts. It is contradicted by a material exhibit whose existence the judgment did not analyse. A court may ultimately reject a receipt for cogent reasons, but it cannot accurately say that no proof of payment was produced when the pleaded payee’s receipt is in the evidential record. 2. The remaining and more difficult question is causal connection. The receipt’s claim-number field is blank and it does not use the phrase “policy excess.” Those omissions required evaluation. They did not, however, permit the document to be read in isolation. The cumulative features were: 3. the receipt was issued by Old Mutual, the same insurer that authorized repairs to KDP 530E on 25th July 2024; 4. it named the Appellant, Beatrice Auma Opondo, as the person on whose behalf payment was made; 5. it identified “DAVID” as payer, corresponding with David Haggaih Otieno Alaka, who testified and made the further statement; 6. it used KDP 530E as the payment account, directly identifying the damaged vehicle; 7. it recorded the Appellant’s policy number 03007010026202024; 8. it was dated 21st August 2024, after Old Mutual’s repair authority of 25th July 2024 and within the sequence of the accident claim and repair; 9. its amount, Kshs. 46,250, precisely matched the amount explained in the further statement dated 4th December 2024; and 10. the further statement explained that payment was required before repairs commenced. 11. Against that integrated evidence, the suggestions that the sum might have been a premium or an unrelated payment were possibilities advanced from the Bar. The Respondent produced no premium notice, policy schedule, alternative transaction record or witness to give those possibilities evidential foundation. This observation does not reverse the legal burden. It recognises that the Appellant’s direct evidence raised an evidential case calling for rebuttal, and none came. On a balance of probabilities, the concurrence of insurer, insured, payer, policy, vehicle, date and exact amount is too specific to be dismissed as coincidence. 12. Mr. Alaka’s use of “excise duty” invited legitimate scrutiny. But the task of a court is to determine the substance of the proved transaction, not to attach dispositive force to a lay witness’s possibly erroneous label. No demand or receipt from the Kenya Revenue Authority was produced. The payment was made to the motor insurer, not to a revenue authority; was credited to the insured vehicle’s registration account; and was explained as a precondition to repair. The trial judgment itself treated the sum as “excess,” as did the Respondent’s alternative argument. Read as a whole, the evidence points to an insurance excess or insured contribution, not statutory excise duty. Correcting that misdescription does not create a new claim; it identifies the legal and commercial character of the transaction shown by the documents. 13. The Respondent was right that strict proof applies. Strict proof, however, is not proof beyond reasonable doubt, nor does it invariably require the maker of an unchallenged business receipt to attend in person. In **Micro-City Computers** (Supra), the court stressed at paragraph 57 that a claimant must deploy “the best evidence reasonably available,” but also held that “the flexibility allowed to a claimant is in the manner and methods of proof that are employed, and may not necessarily be the traditional receipts and payment vouchers.” Here, the Appellant produced the traditional receipt itself, supported by the insurer’s repair authority and oral evidence from the person identified as payer. As required by the Small Claims Court’s Section 32 regime, that was credible, trustworthy and sufficient proof. **THE SUBROGATION ARGUMENT** 1. The Respondent argued that any recovery should have been brought by the insurer under subrogation. That submission conflates the part of a loss indemnified by an insurer with the excess or contribution borne personally by the insured. Even as to an indemnified loss, subrogation does not ordinarily require the insurer to sue the tortfeasor in its own name. The Court of Appeal addressed materially similar reasoning in **Michael Hubert Kloss & Another versus David Seroney & 5 others [2009] KECA 146 (KLR) (9 October 2009)**. The trial court in that case had rejected proved repair charges paid by an insurer because the insured had not shown a demand from the insurer and because, in its view, the insurer could file a fresh suit. The Court of Appeal held: ***“With respect, we think that reasoning is erroneous in law … The insurance contract was between the 2nd respondent and his insurance company and there is no privity of contract between the two and any of the respondents, save for application of the doctrine of subrogation. The insurer is entitled to recoup its loss from the tortfeasor and can only do so through its insured, in this case the 2nd appellant. There is no debate about the pleading and strict proof of the claim and there is no reason why it was rejected…”*** 1. In the present case, the Appellant did not seek the Kshs. 64,728 repair cost authorized by Old Mutual. She reduced her claim and sought the Kshs. 46,250 which the evidence shows was paid to the insurer on her behalf, together with the Kshs. 10,000 separately awarded below. There is no proved double recovery. To the extent that Kshs. 46,250 was the insured’s excess or contribution, it was her own uninsured outlay. To the extent the insurer had any subrogated right concerning sums it indemnified, **Kloss** (Supra) makes clear that such a right does not defeat an otherwise pleaded and proved action in the insured’s name. The subrogation objection therefore fails. **Whether the identified errors warrant appellate interference** 1. The trial Adjudicator committed three connected errors of law. First, the conclusion that no actual proof of payment had been availed was unsupported by the record and fell within the evidentiary category described in **Munya** (Supra). Second, the demand for separate “communication from the insurance for payment” was treated as a legal prerequisite although neither the law of special damages nor the Small Claims Court Act makes such a letter indispensable where payment and its causal connection are otherwise proved. Third, the court did not evaluate the receipt for credibility and trustworthiness in the manner required by Section 32; it simply proceeded as if the exhibit did not exist. 2. This is not a case in which the appellate court merely prefers a different inference after reassessing the credibility of witnesses. The material facts are documentary and objectively verifiable. When the receipt is considered together with the repair authority and the further witness statement, the only conclusion reasonably available is that Kshs. 46,250 was paid to Old Mutual in respect of motor vehicle KDP 530E following the accident of 1st July 2024. No useful purpose would therefore be served by remitting this narrow issue to the trial court. The entire relevant record is before this Court, and the Respondent had a full opportunity to contest the claim. It is consequently just and proportionate for this Court to determine the issue finally and substitute an award for the proved sum, rather than remit the matter for reconsideration and thereby occasion unnecessary delay and expense. 3. **Whether this Court may disturb the award of Kshs. 10,000 at the Respondent’s prayer in submissions alone** 4. The Respondent’s submissions urge this Court to disallow the Kshs. 10,000 awarded as professional fees. No cross-appeal was filed. The principle is stated in **Kariuki versus Attorney General (Civil Appeal 79 of 2012) [2014] KECA 713 (KLR) (21 March 2014)**, where the Court of Appeal held: ***“In any event, we would have dismissed the argument because the respondent did not file a cross-appeal against the judgment of the trial court. It is only on the basis of a cross-appeal that [the respondent] would have been able to challenge the judgment….”*** 1. The present appeal is final under Section 38(2), and fairness requires the scope of the controversy to be defined formally. A submission opposing the Appellant’s appeal cannot by itself enlarge the appeal into a challenge to an independent award in the Respondent’s favour. The Kshs. 10,000 award is therefore not before the Court for determination. The award remains undisturbed solely because it was not competently challenged. 2. Costs ordinarily follow the event, subject to judicial discretion. The Appellant has succeeded on the only issue she brought to this Court. I see no reason to deny her the costs of the appeal. The trial court’s order that each party bear its own costs was not challenged and will remain in place. **DISPOSITION** 1. For the reasons given, I make the following orders: 2. The appeal is allowed. 3. The judgment and decree of the Small Claims Court delivered on 9th May 2025 in Kisumu SCCC No. E453 of 2024 are varied by setting aside the rejection of the claim for Kshs. 46,250 and substituting an award of Kshs. 46,250 under that head. 4. The total monetary award in favour of the Appellant is consequently Kshs. 56,250, comprising Kshs. 46,250 proved as paid to Old Mutual General Insurance Kenya Limited and the unchallenged Kshs. 10,000 awarded by the trial court. 5. Save for the variation in paragraph (b) and the resulting total in paragraph (c), all other orders of the trial court, including its order on costs, remain undisturbed. 6. The Respondent shall bear the costs of this appeal. **Hon. Alex K. Ithuku** **JUDGE** **20/07/2026** Dated, delivered and signed this 24th day of July 2026 Court Assistant – Anastacia Ms. Raburu for the appellant Mr. Odongo holding brief for Mr. Kamwaro for respondent **Mr. Odongo** I pray for 30 days stay of execution. **Hon. Alex K. Ithuku** **JUDGE** **20/07/2026** **Ms. Raburu** No objection **Hon. Alex K. Ithuku** **JUDGE** **20/07/2026** **Court** Stay granted for 30 days. **Hon. Alex K. Ithuku** **JUDGE** **20/07/2026**