https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7247

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPEALLATE DIVISION** **CIVIL APPEAL NO. E1299 OF 2024** **JACQUELINE NJERI………………………………………………..APPELLANT** **VERSUS** **GEORGE KARANJA HENIA…………………………………….RESPONDENT** *(Being an Appeal from the Judgement of Hon. Z.K. Kagenyo (ADJ/RM) in Milimani Nairobi SCCC No. E2455 of 2023 delivered on 01/12/2023)* **JUDGEMENT** 1. The Appellant was the Claimant in Milimani SCCC No. E2455 of 2023 delivered on 01/12/2023. 2. The Appellant filed a claim for special damages amounting to Kshs.202,462.00 in respect of damages to her Motor Vehicle Registration No. KCD 808P Toyota Belta. 3. The Appellant’s motor vehicle was involved in an accident on 18/12/2021 when Motor Vehicle KBD 058T changed lanes at around about and hit Motor Vehicle Registration No. KCD 808P. 4. The Trial Court found the Respondent 100% liable for the accident. 5. However, the Trial Court did not award damages because payment request voucher for the payment was made on 07/01/2022 but the payment was made 06/01/2022. 6. The Appellant has appealed against the said Judgment on the following grounds; 7. ***That the Learned Magistrate erred in law and in fact by failing to appreciate the evidence placed before her.*** 8. ***That the learned Magistrate erred in law and in fact by disallowing a claim which the Appellant had proven to have satisfied beyond reasonable standards.*** 9. ***That the learned Magistrate erred in law and in fact by failing to take into consideration the Appellant’s evidence in reaching her decision.*** 10. ***That the judgment of the learned magistrate was against the weight of the evidence.*** 11. The parties filed written submissions as follows; The appellant submitted that the trial court found the respondent entirely liable for a motor vehicle accident but awarded no damages to the appellant on the grounds that she failed to prove payment for the claimed expenses. 12. The appellant contends that this finding constitutes a fundamental error of law and fact, as the court improperly rejected validly admitted documentary evidence and applied an incorrectly high standard of proof for quantum compared to liability. 13. The underlying dispute arose from a traffic accident on December 18, 2021, at the Roysambu roundabout along Thika Road, where the respondent’s vehicle negligently changed lanes and collided with the appellant's vehicle. 14. Although the appellant presented oral testimony from three witnesses and successfully introduced eleven documentary exhibits detailing the repair costs, assessment fees, and tracing fees, the trial magistrate disallowed the financial claims entirely. 15. A subsequent application for review was dismissed for being late and raising matters more appropriate for an appeal, prompting the appellant to seek a full merits review from the High Court. 16. The appellant argues that an appellate court has a duty to reconsider and evaluate the evidence afresh to correct any manifest injustices from the trial court. 17. In this case, the trial magistrate dismissed the claim for assessment fees based on a speculative, minor date discrepancy between an internal payment voucher request and a payment receipt, interpreting it as proof that the company did not expend the funds. 18. The appellant asserts that this finding was entirely speculative, unsupported by the record, and fundamentally flawed because the purported contradiction was never put to the testifying witness for clarification during cross-examination. 19. Furthermore, who processed the payment internally is legally irrelevant to the respondent's underlying tortious liability. 20. The appellant maintains that proof of payment does not require absolute certainty or bank transcripts, but rather satisfies the standard civil threshold of a balance of probabilities, which can be demonstrated through the cumulative weight of invoices, receipts, and structural repair photos. 21. The appellant highlights that the trial court ignored definitive admissions made during the trial. 22. Under cross-examination by the respondent’s own counsel, the appellant's witness explicitly confirmed the payment of 177,132 Kenyan Shillings to Dunhill Automobiles for vehicle repairs, a fact that went uncontradicted as the respondent chose to call no witnesses and offer no evidence of his own. 23. The magistrate’s total dismissal of these claims demonstrates an inconsistent evaluation of evidence, as the court found the appellant's witnesses perfectly credible when establishing the 100% liability of the respondent but entirely rejected their interconnected testimony regarding financial quantum. 24. By holding the appellant to an evidentiary standard akin to criminal proof for her financial losses while accepting the lower civil threshold for the accident's circumstances, the trial magistrate committed a severe error in principle, rendering a final judgment that went against the entire weight of the uncontroverted evidence. 25. The respondent on his part submitted that the lower court properly dismissed the Appellant's claim in its judgment on December 1, 2023, and awarded costs to the Respondent. 26. Following this, the Appellant filed an application for review, which was also dismissed on April 12, 2024, prompting the current appeal filed on November 12, 2024. 27. The Respondent raises three preliminary issues to assert that the appeal should fail before the court delves into its merits. 28. First, the Respondent argues that the appeal was filed well out of time. Under Section 79G of the Civil Procedure Act, an appeal from a subordinate court to the High Court must be filed within thirty days of the decree or order being appealed. 29. The respondent further submitted that because this appeal explicitly challenges the December 2023 judgment and was filed nearly a year later without seeking the court's leave to file out of time, it should be treated as a nullity. 30. The Respondent emphasizes that even if the timeline were calculated from the April 2024 review ruling, the appeal would still be barred by time. 31. Second, the Respondent argues that a party cannot pursue a review and file an appeal at the same time. 32. Citing Section 80 of the Civil Procedure Act, the Respondent contends that by choosing to opt for a review in the lower court, the Appellant effectively waived her right to file an appeal. 33. Third, the Respondent submits that the appeal is limited strictly to issues of law rather than matters of fact. 34. Since the underlying matter originated in the Small Claims Court, Section 38(1) of the Small Claims Court Act mandates that appeals to the High Court can only be brought on questions of law. 35. The Respondent argues that the Appellant's memorandum and record of appeal focus heavily on factual determinations, specifically asking the court to re-evaluate documents and receipts to assess the validity of the claim. 36. Relying on established jurisprudence, including the High Court precedent in **Frankline Omundi v Lama Fresh Produce Limited**, the Respondent outlines that an appellate court must accept the factual findings of the trial court and cannot re-evaluate evidence unless the lower court's decision is shown to be completely perverse or unsupported by any evidence. 37. The respondent also submitted that because the trial court properly determined the facts and the Appellant raises no arguable prima facie issues of law, the appeal is a tactic to delay justice and requests that it be dismissed with costs. 38. The issues that arise for determination in this appeal are as follows; 39. ***Whether the appeal is incompetent and a nullity for being filed out of time without leave of the court;*** 40. ***Whether the appellant was legally barred from filing an appeal after the dismissal of her application for review in the lower court;*** 41. ***Whether the appeal turns on questions of law or questions of fact, and consequently whether this court has the jurisdiction to entertain it under the Small Claims Court Act; and*** 42. ***Whether the learned trial magistrate erred in law and fact by failing to award special damages despite finding the respondent one hundred percent liable for the accident.*** 43. The first issue to address is the timeline and competence of the appeal. While Section 38(2) of the Small Claims Court Act dictates a thirty-day window for appeals, Article 159(2)(d) of the Constitution explicitly commands that justice shall be administered without undue regard to procedural technicalities. 44. Furthermore, Section 3(2) of the Small Claims Court Act emphasizes that the core objective of the court is to facilitate the affordable, just, and expeditious resolution of disputes. 45. The delay in filing this appeal was not intentional, it was occasioned by the appellant actively pursuing a review in the lower court, a legitimate legal avenue aimed at correcting a manifest error at the earliest opportunity. 46. Procedural rules are handmaidens of justice, not its mistresses, and where a rigid adherence to timelines would shut out a meritorious appeal and perpetuate a clear injustice, the court must lean toward substantive justice. 47. Therefore, the court exercises its inherent residual jurisdiction to deem the appeal properly before it in the interest of justice. 48. The Small claims court Act ought not be elevated above the constitutional mandate enshrined in Article 159 of the constitution of Kenya which mandates courts and tribunals to dispense justice without undue regard to technicalities of procedure. 49. The second issue is whether the appellant was barred from appealing after seeking a review. 50. The respondent’s argument on statutory waiver fails. A party is only barred from pursuing a review if an appeal is already actively pending. 51. Where a review application is filed first and dismissed on procedural grounds, specifically for being filed late and raising matters more suited for an appeal, the right to an appeal to the High Court remains intact. 52. To lock out the appellant would be to deny her the right to a fair hearing under Article 50(1) of the Constitution. 53. The third issue concerns the nature of the appeal and this court's jurisdiction under Section 38(1) of the Small Claims Court Act. 54. The respondent asserts that the dispute involves a re-evaluation of facts. 55. However, the appellant’s grievance elevates to a profound question of law as to whether the trial court applied the wrong evidentiary standard and misdirected itself on the burden of proof. 56. The Court of Appeal in **Mbogo & Another v Shah [1968] EA 93** held that an appellate court will interfere with the exercise of a trial court's discretion if it is satisfied that the court misdirected itself on the law, misapprehended the facts, or took into account irrelevant considerations. 57. By demanding absolute chronological perfection in commercial receipts, the trial court transformed a civil standard of proof into an impossible criminal standard. 58. This misdirection on the law of evidence gives this court full jurisdiction to intervene. 59. On the final issue regarding the merits, it is a cardinal principle of the law of torts that a wronged party should be placed in the position they would have been in had the tort not occurred. 60. The trial court found the respondent one hundred percent liable for the accident but awarded zero damages. 61. This is a classic contradiction. While special damages must be strictly proved, strict proof does not mean proof beyond all shadow of a doubt, but rather stable evidence from which a reasonable person can conclude that the loss was incurred. 62. The appellant presented three witnesses, structural repair photos, and eleven documentary exhibits. 63. The respondent chose to offer no evidence and call no witnesses, leaving the appellant’s evidence entirely uncontroverted. 64. The trial magistrate’s decision to disallow the entire claim based solely on a minor, internal one-day date discrepancy between a payment request voucher and a receipt was highly speculative, arbitrary, and perverse. 65. A date discrepancy on internal accounting documents does not negate the physical reality of a damaged car, structural repair photos, and invoices from Dunhill Automobiles. 66. The trial magistrate extracted this discrepancy without putting it to the testifying witness for clarification during cross-examination, violating the rule in **Browne v Dunn [1893] 6 R 67,** which dictates that a court or opposing counsel cannot discredit a witness on a point without first giving them an opportunity to explain it. 67. The appellant’s evidence was not opposed by the respondent. 68. This constituted a flagrant breach of the appellant's right to a fair hearing. 69. Therefore, the trial magistrate's decision to reject the quantum of damages was entirely unsupported by the weight of the evidence and constituted a grave miscarriage of justice. 70. For these reasons, the preliminary objections raised by the respondent are dismissed, the appeal is hereby allowed, the judgment of the trial court disallowing damages is set aside, and the respondent is ordered to pay the appellant special damages in the sum of Kenyan Shillings 202,462.00. 71. The appellant is also granted costs of the lower court and this appeal and interest from the date of filing the suit in the lower court until payment in full. 72. Orders to issue accordingly. **Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 25th day of May, 2026.** **………….…………….** 1. **N. ONGERI** **JUDGE** **In the presence of:** No appearance for the Appellant Mr Chamwanda for the Respondent Ubah – Court Assistant