https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10586

Eldoret Tailors Self-Help Group v Hanta (Civil Appeal E218 of 2024) [2026] KEHC 10586 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEHC 10586 (KLR) Republic of Kenya In the High Court at Kisumu Civil Appeal E218 of 2024 LM Wachira, J July 10, 2026 Between Eldoret Tailors Self-Help Group Appellant and David Odoyo Hanta Respondent (Being an Appeal from the Judgment of Hon. C. Mayo delivered in Kisumu SCC Civil Case No. E255 of 2024) Judgment DIVISION - Background 1.The matter originates from the judgment of Hon. Mayo, Adjudicator in Kisumu Small Claims Court Civil Case No. SCCC/E255/2024, where the trial court entered judgment for the Respondent against the Appellant. The suit related to a road accident in which the Respondent claimed to have been a passenger in the Appellant’s motor vehicle registration number KDJ 431C which collided with a tricycle registration number KTWC 152C. The trial court found the Appellant 100% liable for the injuries sustained by the Respondent and awarded general damages of Kshs.180,550/-. 2.The Appellant dissatisfied by the judgment of the trial court, has preferred the instant appeal both on liability and quantum and set out three main grounds of Appeal: -a.That the trial court erred in determining liability without the Respondent having pleaded particulars of negligence.b.That the trial court erred in finding the Appellant 100% liable.c.That the trial court failed to consider the Appellant’s evidence and submissions. 3.The Appellant urged this court to set aside the judgement of the lower court in its entirety. The Appeal was canvassed by way of written submissions. Appellant’s Submissions 4.The Appellant submitted that Appeals from the Small Claims Court are governed by the Small Claims Court Act, 2016, particularly Section 38, and the general principles of appellate jurisdiction under the Civil Procedure Act (Cap 21) and the Constitution of Kenya, 2010. That under Section 38(1)of the Small Claims Act, appeals only lie in matters of law. 5.The Appellant submitted that the Respondent's pleadings were silent on the specific acts or omissions on the negligence of the Appellant and that the trial Magistrate in Small Claims Court erred in law and in fact by awarding liability and damages to the Respondent where the Statement of Claim lacked any pleading or particulars of negligence. 6.The Appellant submitted that under Section 26(1) of the Small Claims Court Act, a Statement of Claim must state the material facts giving rise to the claim and where a party alleges tortious liability such as in an accident or personal injury claim, it is a well-settled principle that negligence must be pleaded and proved. 7.The Appellant further submitted that a party must not only plead the legal basis of their claim, but also provide sufficient particulars, particularly where negligence is alleged and that while the Small Claims Court is governed by simplified procedure, it is not exempt from basic pleading requirements. 8.Counsel for the Appellant cited the case of Ogwari v Hersi (Civil Appeal 223 of 2022) [2023] KEHC 20111 (KLR) (3 July 2023) and submitted that it held that: - “Negligence is a matter of fact and law. It must be pleaded with particularity and proved. The Respondent's plaint was bereft of particulars as required under Order 2 Rule 4. As such, the trial court had no proper basis for apportioning liability.” 9.Counsel submitted that the trial court misdirected itself by proceeding to determine a claim based on negligence that was neither pleaded nor particularized, contrary to the law. 10.On liability, Counsel submitted that under Section 107 of the Evidence Act, the burden of proof lies on the person who alleges and that the Respondent was thus duty-bound to prove negligence on the part of the Appellant. Counsel submitted that there was no proof of negligence as the Appellant’s witnesses testified that it is the tricycle that rammed onto the rear of the Appellant’s motor vehicle. Counsel argued that the trial court disregarded this evidence. 11.Counsel submitted that although in Kenya Bus Services Ltd v Humphrey [2003] eKLR, the Court of Appeal held that a passenger is generally not liable for negligence unless they contribute to the cause of the accident, this does not automatically shift 100% liability to a vehicle’s owner in a multi-vehicle accident, especially where the evidence shows an intervening third party was at fault. 12.His argument is that the failure to consider the evidence and ignoring material placed before the court amounts to misdirection and procedural unfairness and renders the decision liable to be overturned on appeal. Respondents Submissions 13.The Respondent submitted that the Small Claims Court in discharging its duties, is purely guided by the Small Claims Act and the Rules that are made thereunder. That the Act spells out the powers of the Court as well as how the court discharges those powers both in substance and procedure. He submitted that Section 17 of the Small Claims Act gives the Court the authority to have control over its own procedure in the determination of matters before it, so long as the said procedures are compatible with the principles of natural justice. 14.According to Counsel, the requirement of pleading for particulars of negligence stems from the Civil Procedure Act Cap 21 Laws of Kenya and the Civil Procedure Rules made under the Act and is not applicable to matter in the Small Claims Court. 15.Counsel also submitted on the provisions of Section 32 of theSmall Claims Court Act, stating that it exempts the court from the general rules of evidence thereby giving the court the power to admit evidence that may otherwise not be considered by courts that are governed by the Civil Procedure Rules and general rules of evidence. 16.On negligence, the Respondent submitted that the police officer attempted to shift the blame to a 3rd Party. He submitted that Section 107 of the Evidence Act on the legal burden of proof states that “Whoever desires any court to give Judgment as to any legal right or liability dependent on the existent of facts which he asserts must proof that those facts exist.” Counsel submitted that it was upon the Appellant to adduce evidence that there was a 3rd Party to blame for the accident, but no such evidence was adduced. Analysis and Determination 17.As properly submitted by the Appellant, appeals from the Small Claims Court are governed by Section 38 (1) of the Small Claims Court Act, 2016, and are only on matters of law. 18.I have considered the grounds of Appeal and the submissions by the parties and I see only two issues for determination, being: -a.Whether failure to plead particulars of negligence by the Respondent is a fatal to the Respondent’s claim.b.Whether the trial court erred in finding the Appellant 100% liable. Whether failure to plead particulars of negligence by the Respondent is a fatal to the Respodents claim. 19.As submitted by the Respondents, the operations of the Small Claims Courts are governed by the Small Claims Court Act. Strict Rules of Civil Procedure and Evidence Act do not apply. In the case of Makanda v Osita (Civil Appeal E213 of 2023) [2025] KEHC 8510 (KLR) Justice W.M. Musyoka had this to say, in respect of application of the rules “The Civil Procedure Rules do not govern andregulate proceedings at the Small Claims Court”. 20.My view is that in Small Claims Court, strict Rules of Procedure and Rules of Evidence are not applicable because of the nature of the claims filed there and the intention of the drafters when the Small Claims Courts were put into place. And based on that view, then the failure to plead particulars of negligence, may not be fatal to the claimant’s case. 21.The Act itself excludes strict application of the Rules to proceedings before the Small Claims Court. Section 32 (1) of the Act provides that the Court shall not be bound wholly by the Rules of evidence and this gives the court a wider power to admit evidence that may otherwise not be considered by courts that are governed by the Civil Procedure Rules and general rules of evidence. 22.The Respondent testified in court and blamed the Appellant for the Accident stating that the Appellant lost control of the vehicle and veered and knocked a tricycle. The Respondent was even cross examined on the issue of who was to blame. The requirement under the Small Claims Act is to provide the particulars that are reasonably sufficient to inform the Respondent what the claim is all about and the relief sought. 23.Indeed Section 24 of the SCC Act provides that the statement of the claim shall contain the following: -a.the name and address of each claimant and, in the case of a representative claim, the name and address of each person represented;b.the name and address of each Respondent;c.the nature of the claim;d.the sum of money claimed by each claimant or person represented;e.the relief or orders sought; andf.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. (Emphasis mine) 24.Looking at the statement of the claim, the claimant pleaded negligence. Although he did not particularize the negligence, in his testimony in court, 33he explained why he thought the Appellant was to blame for the accident. 25.My finding is that the Respondent was sufficiently informed that the claim against it was based on negligence and the failure to particularize negligence is not fatal to the claimant’s case since the proceedings were conducted under the Small Claims Act where the court has the power to simplify the processes and procedures as long as they remain compatible with the Rules of natural justice. 26.The Appellant had submitted that under Section 26(1) of the Small Claims Court Act, a Statement of Claim must state the material facts giving rise to the claim and where a party alleges tortious liability such as in an accident or personal injury claim, it is a well-settled principle that negligence must be pleaded and proved. 27.Section 26 of the Small Claims Act is on Admissions and 26 (1) provides that where the Respondent admits any part of the claim, the Court shall record the admission as an order of the Court in favor of the Claimant and thereafter proceed to determine any part of the claim that is denied or has not been expressly admitted by the Respondent. My view is that the Section is unrelated to the submission by the Appellant and there is a likely error in the submission by the Appellant. 28.And therefore, on this issue my finding is that the failure to particularize the negligence was not fatal to the Respondent’s claim and the adjudicator did nor err in her judgment. Whether the trial court erred in finding the Appellant 100% liable 29.On liability, the Appellant submitted that the burden of proof was on the Respondent to prove that the Appellant caused the accident. The Appellant submitted that there was no evidence that the Appellant’s motor vehicle rammed into the tricycle as the Appellant’s witnesses stated that it is the tricycle that rammed onto the Appellant’s motor vehicle. 30.I have considered this submission. The Respondent sued the Appellant and testified that he was a passenger in the Appellant’s motor vehicle registration number KDJ 431C and that the Appellant negligently controlled the said vehicle and caused it to ram onto the tricycle and cause the accident. The Appellant appears to blame a 3rd Party tricycle for the accident. 31.Under Section 107 of the Evidence Act, the burden of proof was on the Appellant to bring evidence that it is the 3rd Party who was to blame and not the Appellant, the Respondent having adduced evidence that it was the Appellant who was in control of the vehicle and controlled it in a careless manner and caused the accident. The Appellant is the one who brought in the issue of 3rd Party and at that point in time, the burden of proof shifted and it was now upon the Appellant to bring into the proceedings the 3rd Party, and demonstrate that the 3rd Party was to blame for the accident. This did not happen. 32.My finding is that in those circumstances, the trial court did not err in apportioning liability at 100% against the Appellant herein. 33.The upshot of the matter is that the Appeal herein lacks merit and the same is dismissed with costs to the Respondents. 34.Orders Accordingly. JUDGMENT DELIVERED, DATED AND SIGNED VIRTUALLY AT NAIROBI THIS 10TH DAY OF JULY, 2026.…………………………..………………L. M. WACHIRAJUDGEIn the Presence of:Leadys –Court assistantNA for the Appellant.NA for the RespondentPage 3 of 3