https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12758

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPELLATE DIVISION** **HCCA NO. E1182 OF 2024** **BENSON MWITHIGA............................................................APPELLANT** **VERSUS** **SILAS E. NJIRU...................................................................RESPONDENT** ***(Being an appeal from the Judgment of Hon. J.W. Nasimiyu (Adjudicator) delivered on 18th December 2023 in Nairobi Small Claims Court Case No. E3036 of 2023)*** **JUDGMENT** **Background** 1. The dispute herein arose from a road traffic accident which occurred on 6th July 2020 involving motor vehicles registration numbers KBJ 193H, owned by the Respondent and insured by First Assurance Company Limited, and KWS 458 owned by the Appellant. 2. Following the accident, the Respondent's insurer indemnified the Respondent for the repair costs of the damaged motor vehicle and instituted a subrogation claim against the Appellant seeking reimbursement of Kshs.342,926/= allegedly occasioned by the Appellant's negligence. 3. The Small Claims Court found the Appellant wholly liable for the accident and entered judgment against him for Kshs.342,926 together with costs. Aggrieved by the decision, the Appellant lodged the present appeal. 4. The Appellant subsequently obtained leave to amend the Memorandum of Appeal and filed what was titled an Amended Memorandum of Appeal. **The Appeal** 1. The Appellant challenges the judgment on several grounds, contending that the learned adjudicator erred by: 2. ***Holding the Appellant 100% liable for the accident.*** 3. ***Failing to appreciate that the Respondent owed a duty to supervise the young and inexperienced driver of the insured motor vehicle.*** 4. ***Failing to find that the Respondent's driver was guilty of contributory negligence.*** 5. ***Misapplying the doctrine of uberrimae fidei.*** 6. ***Failing to appreciate that the parties had entered into a verbal agreement allegedly relieving the Appellant from liability.*** 7. ***Treating a policy schedule as sufficient proof of an insurance contract.*** 8. ***Allowing material non-disclosure by the Respondent.*** 9. ***Delivering judgment outside the sixty-day period prescribed under Section 34 of the Small Claims Court Act.*** 10. The Appellant therefore seeks that the judgment of the trial court be set aside and liability apportioned equally between the parties. **Appellant's Case** 1. The Appellant contended that the learned Adjudicator misdirected herself in holding him 100% liable. He argued that the Respondent, being the owner of the insured motor vehicle, had a duty to supervise the youthful driver and ought to bear responsibility for contributory negligence. He further contended that there was a verbal agreement at the accident scene under which the Respondent undertook to look solely to his insurer for compensation and waived any personal claim against the Appellant. 2. The Appellant also faulted the trial court for failing to appreciate the doctrine of *uberrimae fidei,* alleging material non-disclosure by the Respondent regarding the insurance policy and arguing that the policy schedule alone was insufficient proof of the insurance contract. He submitted that the judgment was delivered more than 160 days after filing of the claim contrary to Section 34(1) of the Small Claims Court Act, thereby depriving the trial court of jurisdiction. 3. The Appellant faulted the learned Adjudicator for imposing 100% liability without determining whether the Respondent contributed to the accident. It was argued that reliance on the police abstract alone was misplaced since a police abstract merely confirms that an accident was reported and is not proof of negligence. 4. The Appellant further contended that two of the Respondent's witnesses did not witness the accident and that their evidence could not conclusively establish fault. 5. The Appellant relied on authorities which establish that where evidence does not clearly attribute blame to one party, liability ought to be apportioned rather than imposed wholly on one party. 6. The Appellant argued that the Respondent, being the registered owner of the motor vehicle, owed a duty to supervise an inexperienced driver. 7. According to the Appellant, the learned Adjudicator failed to consider the doctrine of negligent entrustment by ignoring the issue of whether the Respondent exercised reasonable care before allowing the driver to use the vehicle. The omission, it was submitted, resulted in an incomplete assessment of negligence. 8. On the standard applicable to learner drivers, the Appellant submitted that learner or inexperienced drivers are judged against the standard of a reasonably competent driver and not a lesser standard merely because of their inexperience. 9. It was submitted that the learned Adjudicator treated the driver's inexperience as a factual excuse instead of applying the objective legal standard of care. 10. The Appellant further contended that the learned Adjudicator failed to apply the doctrine of utmost good faith governing insurance contracts. 11. It was argued that material non-disclosure by the Respondent should have attracted legal consequences which the trial court failed to consider. 12. The Appellant further submitted that the insurance policy schedule was wrongly treated as complete proof of all contractual terms whereas, in law, additional evidence may be required to establish the entire insurance contract. 13. The Appellant argued that the Respondent made a verbal assurance at the accident scene amounting to a contractual waiver or guarantee, which the learned Adjudicator failed to consider. According to the Appellant, the omission resulted in failure to determine an important contractual issue affecting liability. 14. On the jurisdiction of the Small Claims Court, it was submitted that the claim was filed on **3rd July 2023** while judgment was delivered on **18 December 2023,** approximately **168 days** later. 15. The Appellant argued that section 34(1) of the Small Claims Court Act requires matters to be concluded within sixty days from filing. 16. It was therefore contended that once the sixty days expired, the trial court became functus officio and lacked jurisdiction to determine the matter. 17. The Appellant relied on recent Court of Appeal and High Court decisions holding that judgments delivered outside the statutory timeline are nullities for want of jurisdiction. **Respondent's Case** 1. As a preliminary issue, the Respondent submitted that even though the Appellant was granted leave to amend the Memorandum of Appeal, he instead filed a fresh Memorandum of Appeal dated 30th October 2025 rather than amending the original pleading. 2. The Respondent argues that a Memorandum of Appeal is a pleading within the meaning of Section 2 of the Civil Procedure Act and any amendment must comply with Order 8 Rule 7 of the Civil Procedure Rules by endorsing the date and authority for the amendment, striking out deleted words in red ink and underlining all additions in red ink. 3. It was submitted that the Appellant's fresh memorandum failed to comply with the mandatory procedure governing amendments and therefore constitutes a new pleading filed without leave of the Court. The respondent consequently urged that the purported amended memorandum be struck out as incompetent. 4. On the merits of the appeal, the Respondent submitted that the appellant did not testify before the trial court nor call any witness in support of his defence. Accordingly, it was argued that all allegations contained in the defence remained mere pleadings unsupported by evidence while the Respondent's evidence remained uncontroverted. 5. The respondent submitted that the insured driver testified on the circumstances of the accident which testimony was corroborated by the police abstract and other documents that established ownership of the appellant's vehicle and that the evidence demonstrated that the appellant's vehicle veered onto the respondent's lane thereby causing the collision. 6. It was therefore contended that the trial adjudicator correctly evaluated the evidence before finding the appellant wholly liable. 7. The Respondent further argued that the Appellant neither pleaded nor proved contributory negligence, that the Respondent's driver was inexperienced or that the respondent owed a duty to supervise the driver. 8. It was submitted that parties are bound by their pleadings and cannot raise new issues on appeal that were neither pleaded nor canvassed before the trial court. 9. On the doctrine of ubberrimae fidei, the Respondent submitted that the Appellant wrongly invoked the said doctrine and argued that the doctrine governs obligations between parties to an insurance contract, particularly the duty of disclosure owed by an insured to an insurer. 10. According to the Respondent, the present dispute is founded on the tort of negligence arising from a road traffic accident and not on enforcement of rights under an insurance contract. 11. It was submitted that the doctrine has no application to the present proceedings since the Appellant was not a party to the insurance contract between the Respondent and his insurer. 12. The Respondent disputed the Appellant's contention that the insurance contract was not proved and contended that evidence was led through witnesses establishing that the respondent's motor vehicle was insured, that the insurer indemnified the respondent after the accident, that a policy schedule was produced showing the insurance cover and that the insurer paid repair costs, assessor's fees and investigation expenses. 13. The Respondent argued that there is no legal requirement that an insurer must produce the entire insurance policy in every subrogation claim where other evidence sufficiently establish the existence of insurance on a balance of probabilities. 14. Reliance was placed on authorities holding that production of the policy schedule together with evidence of indemnity is sufficient proof of an insurance contract in civil proceedings. 15. On delivery of judgment outside sixty days, the Respondent submitted that although the Act requires matters to be determined within sixty days, the provision has consistently been interpreted as directory rather than mandatory. 16. According to the respondent, courts have held that failure to comply with the sixty-day timeline does not invalidate proceedings or deprive the Small Claims Court of jurisdiction. 17. The respondent relied on several High Court authorities which have interpreted the statutory timeline purposively and held that the timelines are intended to facilitate expeditious disposal of cases and further, that non-compliance affects court administration rather than parties' substantive rights and that invalidating proceedings solely because judgment was delivered outside sixty days would defeat the objectives of the Act and undermine access to justice. 18. The respondent further submitted that delays experienced before the Small Claims Court were partly attributable to circumstances including transfer of the adjudicator, court adjournments and applications made by the appellant himself, including third-party proceedings against his insurer. 19. It was therefore argued that the appellant cannot rely on delay to impeach a judgment where he participated in proceedings that contributed to the passage of time. **Issues for Determination** 1. Having considered the record of appeal, the amended memorandum of appeal, the rival submissions and the authorities cited, I find that the following issues arise for determination: 2. ***Whether the amended memorandum of appeal is competent.*** 3. ***Whether the learned Adjudicator erred in finding the Appellant wholly liable for the accident.*** 4. ***Whether the trial court erred in relation to the alleged contributory negligence, verbal waiver and doctrine of uberrimae fidei.*** 5. ***Whether the Respondent proved the insurance contract and subrogation claim.*** 6. ***Whether delivery of judgment outside the sixty-day period under Section 34 of the Small Claims Court Act rendered the proceedings a nullity.*** **Analysis and Determination** 1. As the first appellate court, this Court is required to reconsider and re-evaluate the evidence before the trial court and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. The applicable principles were stated in ***Selle vs. Associated Motor Boat Co. Ltd* [1968] EA 123**, ***Peters vs. Sunday Post Ltd* [1958] EA 424**, and recently reaffirmed in *R****e Estate of PKM (Deceased)* [2023] KEHC 24031 (KLR)**. 2. I have considered the objection taken by the Respondent regarding the amended memorandum of appeal. The record shows that the original memorandum raised grounds relating to liability, the alleged verbal agreement and the sufficiency of proof of insurance. The later memorandum dated 30th October 2025 recast those grounds and introduced the complaint on Section 34 of the Small Claims Court Act. 3. Order 8 Rule 7 of the Civil Procedure Rules prescribes the manner in which amendments to pleadings should be effected. A memorandum of appeal is a pleading within the meaning of Section 2 of the Civil Procedure Act. The Respondent cited ***KIKM & DAAM (Suing through their mother and guardian ad litem FCK) vs. DMN* [2022] KEHC 13548 (KLR)** and ***Trust Bank Ltd vs. Amalo Co. Ltd* [2002] 2 EA 627** for the proposition that parties must comply with procedural rules on amendments. I agree with the Respondent’s argument that the amended memorandum was inelegantly presented. However, in the circumstances of this appeal, I am not persuaded that the defect is so fatal as to shut out the Appellant from being heard, especially considering that the Respondent addressed the amended grounds fully in submissions. I shall therefore proceed and consider the appeal on its merits. **Liability** 1. On whether the trial court erred in finding the Appellant wholly liable, the Appellant submitted that the learned Adjudicator relied solely on the police abstract and failed to consider contributory negligence. The Respondent, on the other hand, submitted that the Appellant neither testified nor called any witness before the trial court and therefore left the Respondent's evidence wholly uncontroverted. 2. It is trite that pleadings are not evidence and that party who fails to testify leaves his pleadings unsupported. This is the position that was taken by the Court of Appeal in ***CMC Aviation Ltd vs. Crusair Ltd* (No.1) [1987] KLR 103** where it was held that pleadings contain the averments of the parties concerned until they are proved or disproved by evidence. 3. Similarly, in ***Trust Bank Ltd vs. Paramount Universal Bank Ltd & 2 Others* [2009] eKLR**, the Court emphasized that parties are bound by both their pleadings and the evidence tendered in support thereof. 4. The evidence before the Small Claims Court showed that the Respondent’s motor vehicle KBJ 193H was damaged in an accident involving the Appellant’s motor vehicle KWS 458. The Respondent produced the police abstract, assessment report, repair documents and insurance documents in support of the claim. The Respondent’s witnesses also testified on the occurrence of the accident, the repairs undertaken and the insurer’s payment of the repair costs. 5. The Appellant filed a response to the statement of claim but did not testify or call any witness. As I have already noted in this judgment, it is trite that pleadings, however forcefully drafted, are not evidence. In ***Janus Nganga Kiongo & 3 Others vs. Town Council of Kikuyu* [2012] eKLR**, the court held that where a party fails to call evidence, its pleadings remain mere statements of fact. I therefore find that the Appellant’s allegations on contributory negligence, youthful driving, lack of supervision and verbal waiver were not proved. I find that under those circumstances, there was no evidential basis upon which the learned Adjudicator could have apportioned liability. I therefore find no basis for interfering with the finding on liability. 6. The Appellant also contended that the Respondent’s driver was inexperienced and that the Respondent owed a duty to supervise him. This issue was neither pleaded with sufficient particularity nor proved by evidence. It is trite that parties are bound by their pleadings. (See ***Independent Electoral and Boundaries Commission & Another vs. Stephen Mutinda Mule & 3 Others* [2014] eKLR)**. The law is settled that an appellate court cannot determine a case on issues raised for the first time on appeal. **The Doctrine of Uberrimae Fidei** 1. I note that The Appellant devoted considerable submissions to the doctrines of *uberrimae fidei*, material non-disclosure, verbal waiver and proof of the insurance contract. 2. With respect, I find that the Appellant misapprehended the nature of the dispute before the trial court. The present suit was not a dispute between an insured and his insurer. It was a subrogation claim founded on negligence after the insurer had indemnified its insured. The doctrine of utmost good faith regulates disclosure obligations between parties to an insurance contract. The Appellant herein was not privy to the contract between the Respondent and First Assurance Company Limited and cannot therefore rely on alleged non-disclosure under that contract to defeat a tort claim. 3. Accordingly, I find that the alleged material non-disclosure, proof of the policy schedule and the alleged verbal waiver could not defeat an otherwise valid tort claim unless specifically pleaded and proved. 4. I therefore agree with the Respondent that those issues were irrelevant to the determination of negligence in the present appeal. 5. I am also not persuaded that the Respondent was required to produce the entire insurance policy. The policy schedule, claim documents, assessor’s report, repair documents and testimony of the insurer’s witness were sufficient to establish, on a balance of probabilities, that the Respondent’s vehicle was insured and that the insurer indemnified the Respondent. In ***Gahir Engineering Works Ltd vs. Rapid Kate Services Ltd & Another* [2018] eKLR**, the court accepted that a policy schedule and evidence of indemnity can sufficiently prove the existence of an insurance relationship in a subrogation claim. 6. On liability, the trial court, had before it, evidence that the Appellant’s vehicle veered into the Respondent’s lane and caused the collision. The Appellant did not rebut this evidence. I therefore find no basis upon which this Court can interfere with the learned Adjudicator’s finding that the Appellant was wholly liable. **Section 34 of the Small Claims Act.** 1. Section 34(1) of the Small Claims Court Act requires that matters before the Small Claims Court be heard and determined within sixty days. The section encapsulates the legislative objective of ensuring the expeditious disposal of disputes within the Small Claims Court. It provides that proceedings shall, as far as practicable, be heard and determined on the same day or on a day-to-day basis until final determination, which must be within sixty days of filing the claim. It further requires judgment to be delivered on the same day of the hearing or, in any event, within three days thereafter, while limiting adjournments to exceptional and unforeseen circumstances. The provision underscores Parliament's intention that the Small Claims Court should provide a swift, efficient and cost-effective forum for the resolution of low-value commercial disputes. 2. The courts, however, have adopted divergent approaches on the legal effect of non-compliance with the sixty-day timeline. One school of thought, exemplified by ***Kartar Singh Dhupar & Company Ltd vs. ARM Cement PLC (In Liquidation)* [2023] KEHC 2417 (KLR)**, ***Mwasya vs. Githinji* [2025] KEHC 8295 (KLR)** and ***Mark Holdings Ltd & Another vs. Nyamita & 3 Others* [2025] KEHC 13826 (KLR)**, holds that Section 34 is couched in mandatory terms and that the Small Claims Court's jurisdiction is temporally limited to sixty days from the date of filing. In ***Mwasya vs. Githinji****,* (supra) Musyoka J. observed that: ***"Section 34(1) of the Small Claims Act does not just set a time limitation of sixty days... it goes on to direct that the suits are to be heard and determined the same day, and, if that cannot work, on a day-to-day basis... If the sixty-day limitation stipulation was not meant to be strict, the drafters... would not have taken the trouble to prescribe such timelines."*** 1. A contrary line of authority has nevertheless treated the sixty-day period as directory rather than mandatory, holding that the provision is intended to promote efficient case management and not to invalidate proceedings solely because of administrative delays. As noted by Musyoka J. in ***Mwasya vs. Githinji***, (supra) decisions such as ***Biosystems Consultants vs. Nyali Links Arcade* [2023] KEHC 21068 (KLR)** and ***Lumumba vs. Gift Gas Ltd* [2023] KEHC 25998 (KLR)** have taken the view that a delay beyond sixty days does not, without more, deprive the Small Claims Court of jurisdiction. 2. More recently, the three-judge bench in ***Gathaiya vs. Attorney General & 2 Others; 176 Interested Parties* [2026] KEHC 290 (KLR)** upheld the constitutionality of Section 34, affirming that the provision serves the legitimate objective of expeditious disposal of small claims, although it did not finally resolve the conflicting jurisprudence on whether expiry of the sixty-day period automatically extinguishes the court's jurisdiction. 3. In the instant case, the Appellant submitted that non-compliance deprived the court of jurisdiction. The Respondent, on the other hand, argued that the provision is directory. 4. I agree with the reasoning in ***Lumbuva vs. Rift Gas Ltd* [2023] KEHC 25998 (KLR)**, ***Wekesa vs. Karumbu* [2024] KEHC 8283 (KLR)** and ***Crown Beverages Ltd vs. MFI Document Solutions Ltd* [2023] KEHC 58 (KLR)** that Section 34 is intended to promote expeditious disposal of claims and does not render proceedings a nullity merely because judgment is delivered outside sixty days. The provision does not prescribe nullification as a consequence of non-compliance. 5. Moreover, Article 159(2)(d) of the Constitution requires courts to administer justice without undue regard to procedural technicalities. More importantly, the Small Claims Court Act contains no provision declaring proceedings a nullity where judgment is delivered outside sixty days nor does it expressly provide that the court loses jurisdiction after expiry of that period. 6. I respectfully agree with the authorities cited by the Respondent that the sixty-day timeline is directory and intended to facilitate expeditious disposal of cases rather than invalidate otherwise lawful proceedings. To hold otherwise would mean that litigants who have diligently prosecuted their claims would lose judgments merely because of administrative delays beyond their control, a result plainly inconsistent with Articles 48 and 159 of the Constitution. 7. In the instant case, the record shows that the delay was occasioned by several procedural events, including third-party proceedings and adjournments. The Appellant participated in those proceedings and cannot now rely on the passage of time to invalidate the entire process. I therefore find that the Small Claims Court was not divested of jurisdiction merely because the judgment was delivered outside the statutory timeline. 8. Having re-evaluated the evidence and considered the law, I find that the learned Adjudicator properly found the Appellant liable and correctly entered judgment for the Respondent in the sum of Kshs.342,926/=. The appeal does not disclose any error of law or principle warranting interference by this Court. 9. In the end, I find that the instant appeal is not merited and I hereby dismiss it with costs to the Respondent. Orders accordingly. **DATED SIGNED AND DELIVERED VIRTUALLY ON THIS 5TH DAY OF AUGUST 2026** **HON W A OKWANY** **JUDGE**