Board of Management Muslim Girls Secondary School v Nzomo & 2 others (Small Claims Appeal E757 of 2022) [2026] KEHC 10812 (KLR) (Civ) (14 July 2026) (Judgment)

Board of Management Muslim Girls Secondary School v Nzomo & 2 others (Small Claims Appeal E757 of 2022) [2026] KEHC 10812 (KLR) (Civ) (14 July 2026) (Judgment) Neutral citation: [2026] KEHC 10812 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Small Claims Appeal E757 of 2022 D Mburu, J July 14, 2026 Between Board of Management Muslim Girls Secondary School Appellant and Dennis Kaskon Nzomo 1st Respondent Simon Kipkemboi Too 2nd Respondent Kenya Commercial Bank 3rd Respondent (Being an appeal from the judgment of Hon Keyne G Odhiambo (RM) delivered on 2nd March 2022 in Nairobi Small Claims Court Civil Case No. E613 of 2021, Dennis Kakson vs Board of Management Muslim Girls Secondary School) Judgment Introduction 1.This appeal arises from the judgment of Hon Keyne G Odhiambo RM) delivered on 2nd March 2022 in Nairobi Small Claims Court E613 of 2022. 2.The claimant instituted a suit vide a statement of claim dated 23rd September 2021. He averred that on 7th January 2013, the claimant was a lawful pedestrian along Kiambu Road when the respondent drove motor vehicle KBN 833E carelessly and knocked down the claimant, causing him serious body injuries. The claimant suffered fractures in the right humerus and femur. The claimant sought special damages of Kshs. 286,053/= tabulated as follows: medical treatment Kshs 133,553/=, future medical expenses of Kshs 150,000/=, medical report of Kshs 2,000/= and motor vehicle search of Kshs 500/=. 3.The respondents denied the particulars of the statement of claim. The respondents stated that the claimant’s claim was time-barred as per section 4(1) 0f the Limitation of Actions Act. The respondents urged the court to strike out the claimant’s claim. 4.Dennis Kakson Jomo PW1, testified on oath and adopted his witness statement as his evidence in chief. He also produced the claimant’s Exhibits 1-12. Upon Cross-examination, he stated that he was knocked down by a motor vehicle belonging to the school. He stated that the school was not listed as the owner of the vehicle. He stated that the owner of the vehicle was Simon Kipkemboi Too as per the police abstract. He stated that the driver was driving at a high speed. 5.Patrick Koigoh Namutete DW1, testified on oath and stated that he was a resident of Kakamega County and employed as a driver at Muslim Girls Secondary School. He stated that an accident did not occur as alleged or at all and that he was not in Nairobi at the time of the subject matter accident. He stated that Simon Too was not their driver. He submitted that the motor vehicle was insured with CIC Insurance, not Kenindia Insurance, as outlined in the police abstract. 6.Upon cross-examination, he stated that he was the driver of motor vehicle KBN 833E. He stated that when the accident occurred, schools had not reopened. 7.The trial court directed that the parties file written submissions. The claimant filed written submissions dated 22nd February 2022. The claimant submitted that the respondents were 100% liable for the accident. He submitted that Kshs 80,000/= would suffice as general damages for the injuries suffered. He invited the court to be guided by the position adopted in Philip Kipkorir (2006) and Roy Mackenzie (2012) eKLR. He urged the court to award special damages as sought in the statement of claim. 8.Vide a judgment dated 2nd March 2022, the trial magistrate entered judgment in favour of the claimant. The trial magistrate awarded the claimant a total of Kshs 686,033/= comprising general damages, special damages, future medical expenses, medical report expenses and a copy of records. The Appeal 9.Dissatisfied with the findings of the trial court, the appellant filed this appeal vide a memorandum of appeal dated 27th September 2022. The grounds of appeal raise the following issues for determination:i.Whether the trial court erred by finding that the suit was properly filed despite it being filed out of time?ii.Whether the trial magistrate erred by failing to appreciate the law on Limitation of Actions?iii.Whether the trial magistrate erred by shifting the burden of proof of the existence of leave to file suit out of time yet the respondent had not discharged the burden?iv.Whether the trial magistrate erred by failing to appreciate the law on burden of proof and relying on extraneous evidence hence arriving at a wrong decision? 10.The appellant urged the court to allow the appeal and set aside the judgment issued by the trial court on account that the primary suit was statute-barred. 11.The court directed the parties to canvass the appeal by way of written submissions. Appellant’s Submissions 12.In support of the appeal, the appellant filed written submissions dated 11th December 2025. The appellant submitted that the trial magistrate erred in law and in fact by finding that the suit was properly on record, yet there was no court order on record to prove that leave had been sought and granted to file the suit out of time. The appellant submitted that the suit was filed after 8 years, contrary to the law on actions founded on tort (3 years). The appellant submitted that the limitation period of actions is not procedural but substantive. 13.The appellant reiterated that proof of leave is a factual and legal prerequisite for sustaining a claim filed out of time and that the burden of establishing that leave was granted was on the claimant, the respondent in this appeal. Furthermore, the appellant urged the court to allow the appeal and set aside the judgment of the trial court. Respondent’s submissions 14.The 1st respondent filed written submissions dated 30th March 2026. The 1st respondent submitted that the suit was properly on record. He submitted that leave had been sought in Milimani Civil Case No. E8642 of 2021 and an order granting the leave was issued on 30th July 2021. 15.The 1st respondent submitted that the appellant failed to challenge the leave at trial as required and has only relied on it as a technicality to defeat the ends of justice. The 1st respondent cited the case of John Gachanja Mundai vs Francis Muriira (2017) eKLR, where the court held that a defendant can only challenge the leave at trial by way of cross-examination on the circumstances leading to the late filing of the suit. 16.On whether the appeal is merited, the 1st respondent submitted that whether leave to file the suit out of time is a matter of fact that ought to have been handled at the trial court. The 1st respondent submitted that appeals to the High Court from the Small Claims Court are limited to issues of law. 17.The 1st respondent submitted that the High Court does not have jurisdiction to entertain appeals on issues of fact from the Small Claims Court. The 1st respondent urged the court to dismiss the appeal and uphold the decision of the trial court. Analysis And Determination 18.I have exhaustively considered the record of appeal, the judgment of the trial court, the rival submissions by the parties as well as the cited judicial decisions. This being a first appeal from the Small Claims Court, the court is called upon to re-evaluate the evidence which was adduced in the subordinate court, on points of law and come up with its findings and conclusions. 19.Section 38 of the Small Claims Court Act 2016 provides that appeals from the said court to the High Court shall only be on issues of law. Moreover, the role of a first appellate court was reiterated in the matter of Selle vs Associated Motor Boat Company (1968) EA. The court held that the first appellate court is enjoined to revisit the evidence that was before the trial court afresh, analyze it and arrive at its own independent findings, but always bearing in mind that the trial court had the benefit of seeing the witnesses, hearing them and observing their demeanor. 20.The issues arising for determination in this appeal are:i.Whether this court has jurisdiction to hear this appeal?ii.Whether the suit was properly on record despite being filed outside the statutory prescribed timeline?iii.Whether the appellant is entitled to the reliefs sought? 21.The law on jurisdiction was enunciated in the matter of Owners of Motor Vessel Limited ‘Lillian S’ vs Caltex Oil Kenya Limited. The court held that jurisdiction is everything and without it a court has no power to make a further step. 22.In light of the above jurisprudence, jurisdiction is the cornerstone to judicial authority and stems from the constitution or a statute as was held in the case of Macharia vs Kenya Commercial Bank. Therefore, the jurisdiction of this court in appeals stemming from the Small Claims Court is limited to matters of law pursuant to section 38 of the Act establishing the Small Claims Court. 23.The respondent submitted that the court lacks jurisdiction to hear the appeal since the issues raised herein are issues of fact that ought to have been determined at the trial court. On the other hand, the appellant submitted that the appeal is properly on record and that the trial magistrate erred in fact and in law by failing to appreciate the law on limitation of actions. 24.The respondent submitted that that leave had been sought in Milimani Civil Case No. E8642 of 2021 and an order granting the leave was issued on 30th July 2021. On this issue, appellant submitted that the trial magistrate erred in law and in fact by finding that the suit was properly on record, yet there was no court order on record to prove that leave had been sought and granted to file the suit out of time. 25.As such, the court is called upon to determine whether proof of a court order to establish that leave had been granted or otherwise is a matter of law or fact. A question of law is one that requires interpretation of the Constitution, a statute or a common law principle, whereas a question of fact requires proof through presentation of evidence. 26.For this court to determine the issue raised by the appellant, it would be required to interrogate the contents of the court order issued in Milimani Civil Case No. E8642 of 2021 and even go so far as to listen to witnesses. As such, the issue of proof that leave was sought and granted is a matter of fact outside the jurisdiction of the High Court in appeals from the Small Claims Court. 27.The appellant objected to the issuance of the leave to file the claim outside the statutory timelines in their statement of defence but did not prosecute it during trial. 28.In the matter of Oruta & another vs Nyamato (1998) eKLR, the court held that once leave is granted under section 28 of the Limitation of Actions Act, it can only be challenged at trial. Therefore, an objection regarding the grant of leave to file a suit or its proof or absence is a matter that can only be raised at the hearing by way of cross-examination. There is no evidence on record that the appellant cross-examined the respondent on the proof of the disputed court order. The appellant only indicated that he objected to the leave on his statement of defence, but did not prosecute the objection either by cross-examination or in their submissions. 29.It is trite law that parties are bound by their pleadings. As such, the trial magistrate could not proceed to determine issues of law and fact not prosecuted by the parties before him. I find that interrogating the existence of the court order and its authenticity is a matter of fact. 30.In light of the foregoing, I find that this court does not have jurisdiction to hear the appeal pursuant to section 38 of the Small Claims Court Act 2016. 31.For the above reasons, I find that the appeal lacks merit and hereby dismiss it with costs. Final Orders 32.The judgment delivered on 2nd March 2022 in Nairobi Small Claims Court No. E613 of 2021, Dennis Kakson vs Board of Management Muslim Girls Secondary School is hereby upheld.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF JULY 2026.DAVID MBURUJUDGEIn the presence of:Mr. for the AppellantMr. for the RespondentsCourt Assistant - Kalondu