https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9455

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT THIKA** **CIVIL APPEAL NO. E029 OF 2025** **MARTIN KANG'ETHE GICHERE......................................................APPELLANT** **VERSUS** **MEDECINS SANS FRONTIERES (BELGIUM)........................1ST RESPONDENT** **ICEA LION GENERAL INSURANCE CO. LTD........................2ND RESPONDENT** **MERCY WANJIRU GACHAU...................................................3RD RESPONDENT** **NICHOLAS KINYANJUI KURIA...............................................4TH RESPONDENT** *(Being an Appeal from the entire Ruling/Judgment, orders and Decree of Hon. T. J. Khalimesi (Adjudicator) delivered in Ruiru Small Claims Court Case No. E502 of 2024 on 17th February, 2025)* **JUDGMENT** 1. This is a first appeal arising from the Ruling and Order of the Small Claims Court at Ruiru by Hon. T. J. Khalimesi, Adjudicator delivered on 17th February 2025 in SCCC No. E502 of 2024. In the impugned decision, the learned Adjudicator dismissed the Appellant's claim for want of prosecution after the Appellant encountered technological hitches that prevented him from logging into the virtual court session, despite his first witness having already testified. 2. The Appellant instituted a claim at the Small Claims Court seeking material damages arising from a road traffic accident that occurred on 25th March 2022. The accident involved his motor vehicle, registration number KCH 642V and the 1st Respondent's motor vehicle, registration number KX95A014. 3. The record of appeal indicates that after preliminary applications were disposed of, the matter was scheduled for its first inter partes hearing on 17th February 2025. On the material day, the hearing commenced virtually and the Appellant's first witness (CW1), Corporal Linet Makufi, successfully took the stand and testified, producing an exhibit before the court. 4. However, when it was time for the Appellant to testify, he experienced difficulties logging into the virtual court platform. His counsel, Mr. Mungai, sought the court's indulgence, praying either for an adjournment or, alternatively, that the Appellant be permitted to testify via a direct phone call or a WhatsApp video call. The learned Adjudicator declined these requests, noting that the Appellant had been indulged but failed to turn up to prosecute his claim and summarily dismissed the suit with costs. **The Appeal** 1. Aggrieved by that summary dismissal, the Appellant lodged the present appeal raising several grounds: 2. THAT the Learned trial adjudicator erred in law in shutting the appellant (Claimant in the Small Claims Court) from the seat of justice without any justification. 3. THAT the Learned trial adjudicator erred in law in denying the appellant an adjournment and or extension of time by a few minutes for the appellant to successfully log into the virtual court. 4. THAT the learned trial adjudicator erred in law in failing to take into account that the appellant has always been keen to have his case heard hence the error in law for dismissing his case for want of prosecution. 5. THAT the Learned trial adjudicator erred in law in denying the appellant an opportunity to present his case fully having already tendered partial evidence through one witness. 6. THAT the Learned trial adjudicator erred in law in failing to scrutinize the entire record since filing of the claim to decipher that the appellant has always been keen to prosecute his case. 7. THAT the Learned trial adjudicator erred in law in exhibiting serious bias against the appellant thereby dismissing his case for want of prosecution in the appellant's and his counsel's presence. 8. THAT the learned trial adjudicator erred in law in failing to allow the appellant prosecute his case fully using the tools provided for under the Small Claims Courts Act and Rules. 9. The Respondents opposed the appeal. The 3rd and 4th Respondents filed detailed written submissions arguing that the appeal is premature. They contended that the Appellant ought to have exhausted the mechanisms provided under Order 12 Rule 7 of the Civil Procedure Rules by applying to the trial court to reinstate the suit, rather than rushing to the appellate court. They further argued that the Adjudicator properly exercised his discretion, bearing in mind the strict 60-day timeline for the disposal of matters mandated by Section 34 of the Small Claims Court Act. **Issues for Determination** 1. As a first appellate court, it is my duty to re-evaluate the evidence and the record of the trial court to arrive at my own independent conclusions, bearing in mind that I neither saw nor heard the witnesses. 2. I have carefully considered the record of appeal, the Ruling of the Small Claims Court and the submissions by counsel. The dispute crystallizes into two main issues for determination: 3. Whether the appeal is incompetent and premature for failure to exhaust alternative remedies. 4. Whether the learned Adjudicator erred in law by dismissing the Appellant's suit for want of prosecution. **Analysis and Determination** 1. ***Whether the appeal is incompetent and premature*** 2. The Respondents submitted that the Appellant should have filed an application for reinstatement before the Small Claims Court before lodging this appeal. While the doctrine of exhaustion of remedies is a sound legal principle, it is not an absolute bar, particularly where the trial court has rendered a final determination that invokes a statutory right of appeal. 3. Section 38 of the Small Claims Court Act expressly confers the right of appeal to the High Court against a decision or order of the Adjudicator on matters of law. The Appellant's grievance that he was denied the right to a fair hearing and that the Adjudicator misinterpreted statutory provisions regarding virtual hearings raises pure points of law. 4. The Court of Appeal in ***[Nyutu Agrovet Ltd v Airtel Networks Limited (2015) eKLR](https://kenyalaw.org/akn/ke/judgment/keca/2016/444)*** cited with approval the decision by Ringera J ( as he then was ) in *Nova Chemicals Ltd v Alcon International Ltd* HC MISC APPL 1124/2002 where the learned judge held that: **“…the recognition that the right of appeal, with or without leave, must be conferred by statute and the same is never to be implied”** 1. It therefore follows that the right of appeal must be expressly conferred by statute and is a litigant's entitlement when properly invoked. Since the Small Claims Court Act confers this right on matters of law, the Appellant was well within his rights to invoke the appellate jurisdiction of this Court. To dictate that he must first seek a review from the very court that summarily shut its doors on him would be placing procedural technicalities above substantive justice. I therefore find that the appeal is competent. 2. ***Whether the Adjudicator erred in dismissing the suit for want of prosecution*** 3. This issue goes to the very heart of the right to a fair hearing as enshrined in Article 50(1) of the Constitution. The record reveals that the dismissal occurred on the very first day of hearing. It is not disputed that the Appellant's counsel was present and indeed, the Appellant's first witness had already testified. The only hindrance was a technological glitch that prevented the Appellant from logging into the virtual platform. 4. It is a well-established principle that the dismissal of a suit for want of prosecution is an extreme measure. In the case of John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation) [2015] KEHC 6789 (KLR)***Royal Housing Co-operative v National Co-operative Housing Union & another [2023] KEHC 3535 (KLR),*** the High Court eloquently captured this principle, stating that : **“Courts should sparingly dismiss suits for want of prosecution for dismissal is a draconian act which drives away the plaintiff in an arbitrary manner from the seat of judgment. Such acts are comparable only to the proverbial Sword of Damocles which should only draw blood where it is absolutely necessary.”** 1. In the instant case, the Adjudicator allowed the proverbial Sword of Damocles to fall prematurely. The Appellant was not indolent, he was merely a victim of the unpredictability of technology. To dismiss an entire claim midway through the plaintiff's case simply because of a connectivity issue is akin to throwing the baby out with the bathwater. It defeats the very essence of substantive justice. 2. Furthermore, the learned Adjudicator misdirected himself on the application of the Small Claims Court Act. Section 29(1) of the Act provides: **The Court may, on such conditions as the Chief Justice may by Rules prescribe, permit proceedings before that Court to be conducted by telephone, videophone or any other electronic means.** 1. When the Appellant's counsel requested that his client be allowed to testify via a direct phone call, he was invoking this exact statutory latitude. The Adjudicator's rigid adherence to a specific virtual platform, while ignoring the flexible tools provided by the statute to ensure access to justice, was a misdirection in law. 2. While I agree with the Respondents that Section 34 of the Small Claims Court Act mandates the expeditious disposal of cases within 60 days, speed must never be allowed to subvert substantive justice. The altar of expediency should not be used as a slaughterhouse for the constitutional right to a fair hearing. Article 159(2)(d) of the Constitution demands that justice be administered without undue regard to procedural technicalities. 3. Accordingly, I find that the learned Adjudicator erred in law and exercised his discretion injudiciously when he dismissed the Appellant's claim for want of prosecution. The Appellant demonstrated a clear intention to prosecute his case, as evidenced by the presence of his counsel and the active testimony of his first witness. **Costs** 1. The general rule is that costs follow the event and the Appellant has succeeded in this appeal. However as per the tenets of Section 27 of the Civil Procedure Act, an appellate court retains the discretion to depart from this rule for good reason. Given that the dismissal was primarily occasioned by a misdirection of the trial court rather than the direct fault of the Respondents, I am of the view that a just order would be to grant the Appellant the costs of this appeal, but to direct that the costs of the proceedings in the lower court abide the final outcome of the reinstated suit. **Determination** 1. For the foregoing reasons, I find merit in this appeal. I accordingly make the following orders: 2. *The Appeal is hereby allowed.* 3. *The Ruling and Order of the Small Claims Court at Ruiru delivered on 17th February 2025 dismissing the Appellant's claim for want of prosecution is hereby set aside.* 4. *The Appellant's claim in Ruiru SCCC No. E502 of 2024 is reinstated and shall proceed to hearing and determination on its merits before a different Adjudicator.* 5. *The Appellant is awarded the costs of this appeal.* Orders accordingly. DATED and DELIVERED at Nairobi this 2nd day of July , 2026. ……………………………………… **BENARD WAFULA MURUNGA** **JUDGE OF THE HIGH COURT** *Delivered on a virtual platform in the presence of:* *Mungai instructed by Musa Boaz & Thomas for the Appellants* *Njeri Kariuki for the 1st and 2nd Respondents (N/A)* *Chebet h/b for Kamunda instrructed by Kamunda Njue for the 3rd and 4th Respondents* *Kevin Babu - Court Assistant*