Njue v Kuta & another (Civil Appeal E1123 of 2024) [2026] KEHC 10338 (KLR) (Civ) (2 July 2026) (Judgment)

Njue v Kuta & another (Civil Appeal E1123 of 2024) [2026] KEHC 10338 (KLR) (Civ) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 10338 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E1123 of 2024 D Mburu, J July 2, 2026 Between Ivy Nyakio Njue Appellant and George Amunga Kuta 1st Respondent Kiprono Kenneth 2nd Respondent (Being an appeal from the judgment and decree of the Honourable Gillian Simatwo RM issued on 10th September 2024 in SCCC E4687 of 2023) Judgment 1.Before this Court is a Memorandum of Appeal dated 30th September 2024 seeking the following orders:i.The appeal be allowed.ii.The order of the trial court made on 10th September 2024 be reviewed, annulled and/or set aside in its entirety.iii.The cost of the appeal be borne by the respondents.iv.Any other orders as the court may deem fit. 2.The grounds of the appeal as set out in the memorandum of appeal are:i.That the learned adjudicator erred in law and in fact by finding and holding suo moto, that the Small Claims Court does not have jurisdiction in the matter when the court had proceeded to hear and determine the matter, culminating in the judgment delivered on 9th February 2024.ii.That the learned adjudicator erred in law and in fact by directing and/or ordering the appellant to withdraw the matter from the Small Claims Court and file a fresh suit at the Magistrates Court when the trial court was already functus officio, having delivered its judgment on 10th September 2024.iii.That the learned adjudicator erred in law and in fact by declining to hear and determine the respondent’s application dated 2nd August 2024, seeking inter alia the setting aside of the interlocutory judgment entered on 9th October 2023 against the respondents. Background Of The Appeal 3.The claimant had filed a personal injury claim vide the statement of claim dated 13th September 2023. The claimant had sued the respondent for negligence that led to an accident on 18th September 2020 along Thika Road at the Muthaiga footbridge. The particulars of injuries outlined in the statement of claim are as follows: degloving wound left leg posterior, scars on the left leg posterior, and soft tissue injuries. The claimant sought special damages of Kshs 313,200/= and general damages of Kshs 800,000 to be determined at the court’s discretion. 4.The respondent filed a response to the statement and denied the claimant's allegations. The respondents averred that the negligence was on the part of the motorcycle that carried the claimant. The respondents urged the court to dismiss the claimant's claim with costs. 5.Before the matter proceeded to a full trial, the claimant obtained a default judgment. Vide a Notice of motion dated 9th August 2024, the respondents filed an application for setting aside the default judgment entered on 9th October 2023, claiming that the same was irregular since it had been obtained without considering the respondents' response to the statement of claim. 6.In response to the application, the claimant filed a replying affidavit dated 19th August 2024, urging the court to dismiss the respondent’s application with costs. 7.The court issued a judgment dated 9th February 2024 as per page 75 of the record of appeal. In the said judgment, the trial resident Magistrate awarded the claimant Kshs 312,300/= as special damages and costs of the suit together with interest from the date of the judgment. 8.On 10th September 2024, the matter came up for hearing of the respondent’s application, and the trial court suo moto stated that it was bereft of jurisdiction. The trial court directed the claimant to refile her claim in a court of competent jurisdiction and the respondents to withdraw their application for setting aside the interlocutory judgment. 9.Dissatisfied with the trial court’s orders of 10th September 2024, the appellant filed this appeal. Proceedings At The High Court 10.The appellant submitted that the trial court had jurisdiction to hear the appellant's claim by virtue of section 12 of the Small Claims Court Act 2016. The appellant submitted that there are conflicting decisions of the High Court on the jurisdiction of Small Claims Court in matters of personal injury claims. 11.The appellant submitted that Magare J in the case of Jerusha Auma Ogwari, Civil Appeal 223 of 2022 eKLR, held that the Small Claims Court had no jurisdiction to hear personal injury claims. 12.Furthermore, the appellant submitted that Muchemi J in the Naomi Wanjiru Irungu case (2024) eKLR, gives section 12 (1) (d) of the Small Claims Court Act a purposive and literal interpretation that sustains the jurisdiction of the court in personal injury claims. 13.The appellant submitted that jurisdiction flows from the constitution or legislation and not case law. In the case of Samuel Kamau Macharia v KCB (2012) eKLR, the court held that jurisdiction flows from the Constitution or legislation. 14.The appellant submitted that the trial court erred by declining to hear the parties on a post-judgment application on account of lack of jurisdiction. 15.The appellant submitted that where the court raises a jurisdictional issue suo moto, the court has an obligation to hear the parties on the issue before making the ultimate decision. 16.The appellant submitted that at the time, the trial court directed the claimant to refile her claim and the respondents to withdraw their application, the court had become functus officio. The appellant submitted that it was erroneous for the trial court to hold that it lacks jurisdiction post judgment. 17.The appellant urged the court to allow the appeal as prayed. Analysis And Determination 18.I have carefully considered this memorandum of appeal, the record of proceedings before the lower court, as well as the written submissions filed by the appellant. 19.This is a first appeal. It is settled law that the duty of the first appellate court is to re-evaluate the evidence which was adduced in the subordinate court, both on points of law and fact and come up with its findings and conclusions. 20.In the matter of Gitobu Imanyara v Attorney General (2016) eKLR, it was held as follows:‘’An appeal to this court is by way of a retrial, and the principles upon which this court acts in such an appeal are well settled. This court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.’’ 21.The issue arising for determination before this court is:a.Whether the Small Claims Court had jurisdiction to hear and determine the statement of claim filed by the appellant herein?b.Whether the court had a duty to hear the parties upon suo moto finding out that it lacked jurisdiction?c.Whether the trial court erred in law and fact by declining jurisdiction at the post-judgment stage?d.Whether the appellant is entitled to the reliefs sought? 22.This being an appeal from the Small Claims Court, it is important for this court to point out that Section 38 of the Small Claims Court Act 2016 provides that appeals from the said shall only be on issues of law. 23.The appeal is founded on the question of jurisdiction of the Small Claims Court to hear and determine personal injury claims. Jurisdiction is an issue of law. As such, the appeal is rightfully before this court. 24.In the case of Ogwari v Hersi (Civil Appeal 223 of 2022) eKLR, the court held that the Small Claims Court does not have jurisdiction to hear and determine Road Traffic Accident claims. 25.There has been conflicting jurisprudence on this matter arising from the courts. After the Ogwari decision (supra), the High Court in Thika in the matter of Mercy Muthoni Gichovi v Jane Wanjiku Kilem (2024) eKLR, the court conclusively held that Small Claims Court is possessed of jurisdiction to hear and determine personal injury claims that arise from road traffic accidents that are within the capped pecuniary value of Kenya Shillings One Million (Kshs 1,000,000/=). 26.Recently, a three-judge bench issued a judgment in Gathaiya v Attorney General (2026) KEHC eKLR, the court held as follows:‘’A cursory plain reading of the Small Claims Court Act 2016 would show that the court is given jurisdiction to entertain claims for personal injuries. In this regard, we find that the claims for compensation for injuries arising out of road traffic accidents were not contemplated to be part of the matters of the Small Claims Court under Section 12 (1) (d). 27.In light of the several conflicting decisions from the High Court. This issue of jurisdiction of the Small Claims Court is a developing jurisprudence. As such, the trial adjudicator ought to have allowed the litigants to submit on the jurisdictional issue, which is yet not conclusively settled in law. 28.Jurisdiction is an issue that can be raised at any point during the proceedings. Therefore, the ground that the adjudicator suo moto declined to hear the parties at a post judgment stage does not hold water and is set to fail. 29.Flowing from the foregoing, I find that the adjudicator was right in directing the claimant to file the suit at a competent court for hearing and determination. 30.Courts are alive to the fact that because of the conflicting decisions from courts of equal status, it would be unfair and against the constitutional right to access justice as a tool of social transformation to make orders prejudicing litigants who had already filed their personal injury claims before the Small Claims Court. 31.In conclusion, this court finds that the appeal lacks merit and makes the following orders:i.An order is hereby issued setting aside the interlocutory judgment issued on 9th February 2024 against the respondent in its entirety.ii.An order is hereby issued upholding the ruling issued by the trial adjudicator on 10th September 2024, directing the claimant to file a fresh suit before the Magistrates Court, within the jurisdiction where the accident occurred.iii.Each party to bear its own costs of the appeal. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF JULY 2026.DAVID MBURUJUDGE