https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11227

Mwalimu v Oyaro (Civil Appeal E147 of 2025) [2026] KEHC 11227 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KEHC 11227 (KLR) Republic of Kenya In the High Court at Mombasa Civil Appeal E147 of 2025 J Ngaah, J July 24, 2026 Between Mwanasiti Mwalimu Appellant and Livingstone Ragira Oyaro Respondent (Being an appeal from the judgment delivered on the 24th April, 2025 by the Honourable Magistrate Gatambia Samuel Ndungu, in Mombasa Small Claims Court Claim No. E099 of 2025) Judgment Introduction 1.This is a first appeal from the judgment of the Small Claims Court at Mombasa (Hon. Gatambia Samuel Ndungu, Adjudicator) delivered on 24th April 2025 in Mombasa SCCC No. E099 of 2025, Livingstone Ragira Oyaro v Mwanasiti Mwalimu & Kenya Orient Insurance Company Limited. The trial court entered judgment in favour of the Claimant, Livingstone Ragira Oyaro (the Respondent in this appeal), against Mwanasiti Mwalimu, the 1st Respondent in the court below and the Appellant before this Court, in the global sum of Kshs. 252,820/-, together with costs and interest. 2.Dissatisfied with that outcome, the Appellant lodged a Memorandum of Appeal dated 13th May 2025, and filed the same day, seeking to have the judgment of the Small Claims Court set aside and substituted with an order dismissing the suit with costs to the Appellant, both in this Court and in the Small Claims Court below. Background 3.The dispute has its origin in a road traffic accident said to have occurred on 9th October 2023 at about 6.30 p.m. at St. Thomas area along the Likoni-Ukunda Road. The Respondent's case, as pleaded in the Statement of Claim dated 6th March 2025, was that he was riding a tuk tuk registration number KTWB 578U when a motor vehicle registration number KCP 579U, said to be owned by the Appellant and insured by Kenya Orient Insurance Company Limited under policy number MSA/0700/269438/2020, was driven so recklessly and carelessly that it lost control, veered off the road and rammed into his tuk tuk, causing him to sustain injuries to his right elbow. 4.The claim, brought under the Small Claims Court Act, sought special damages of Kshs. 17,550/-, general damages for pain and suffering to be assessed by the court, and costs. It was instituted against the Appellant as 1st Respondent and Kenya Orient Insurance Company Limited as 2nd Respondent. 5.The Appellant and the 2nd Respondent, acting through the same firm of advocates, filed a joint Response to the Statement of Claim on 24th March 2025, denying liability and denying, among other things, that the Appellant was the owner of motor vehicle registration number KCP 579U or that the 2nd Respondent was its insurer. They also raised, by a Notice of Preliminary Objection of even date, a challenge to the jurisdiction of the Small Claims Court to entertain a claim for personal injuries and what they characterised as a declaratory claim against an insurer, relying principally on Jerusha Auma Ogwari v Ibrahim Aisha Hersi, Mombasa Civil Appeal No. 223 of 2022, and Kenya Orient Insurance Limited v Otieno, Civil Appeal No. E166 of 2023; [2024] KEHC 7637 (KLR). 6.When the matter came up for mention on 24th March 2025, the Respondent's advocate applied to withdraw the suit as against the 2nd Respondent. That application was not opposed and was allowed, with no order as to costs. The trial court then directed that the Preliminary Objection and the substantive dispute between the Respondent and the Appellant would be dealt with contemporaneously, such that if the Preliminary Objection succeeded the claim would collapse, but that if it failed, the court would “proceed to consider the dispute by way of documents only.” Parties were given leave to file written submissions, and judgment was fixed for 24th April 2025. 7.It is common ground, and indeed recorded by the trial court in its own judgment, that following those directions the Appellant's advocates wrote to the trial court on 24th March 2025 objecting to the matter proceeding on a documents-only basis, stating expressly that no such consent had been given by the parties, and further contending that determining the Preliminary Objection and the substantive claim together would occasion an injustice. Nothing on the record suggests that this objection was ever formally addressed or resolved by the trial court before judgment was rendered. 8.On 24th April 2025, the trial court delivered its judgment. It dismissed the Preliminary Objection, holding itself satisfied that the Small Claims Court has jurisdiction over personal injury claims by dint of Section 12(1)(d) of the Small Claims Court Act, while accepting that it lacks jurisdiction over purely declaratory claims against insurers – a finding rendered moot by the earlier withdrawal of the suit against the 2nd Respondent. The trial court then proceeded to determine the substantive claim against the Appellant on the documents on record. In doing so, it confronted what it described as “a riddle”: whereas the Statement of Claim, the demand letter and the underlying pleadings identified the offending motor vehicle as registration number KCP 579U, the Respondent's own Witness Statement, the Police Abstract on the road accident and the NTSA motor vehicle search all identified it instead as registration number KCP 579Q, a Toyota Rumion station wagon registered in the Appellant's name. The trial court resolved this inconsistency in the Respondent's favour, holding that the Respondent had “all along intended” the vehicle to be KCP 579Q, and that the discrepancy did not go to the root of his case. 9.Having so found, the trial court held the Appellant wholly liable for the accident, awarded special damages of Kshs. 2,820/- (being the only heads of special damages it found strictly proved) and general damages for pain and suffering of Kshs. 250,000/-, resulting in a global award of Kshs. 252,820/-, together with costs and interest at 12% per annum until payment in full. 10.A decree was extracted on 5th May 2025. On 13th May 2025, alongside the Memorandum of Appeal, the Appellant filed an application in the Small Claims Court seeking stay of execution pending the intended appeal, the interim thirty-day stay granted at the point of delivery of judgment being due to lapse on 24th May 2025. On 15th May 2025, the trial court declined to certify that application as urgent and, having regard to the pending appeal and the hierarchy of courts, elected to exercise restraint and make no further orders on stay. The Appellant thereafter filed a fresh Notice of Motion in this Court on 20th May 2025 seeking stay of execution pending the hearing and determination of the appeal, which this Court (Mutai, J.) certified urgent on 21st May 2025 and, pending the interparty hearing of that application, stayed execution of the judgment of 24th April 2025. That application for stay is not the subject of this judgment, which is confined to the substantive appeal. Memorandum of Appeal 11.The Appellant's Memorandum of Appeal dated 13th May 2025 sets out six grounds, which may fairly be summarised as follows:(a)That the trial magistrate/adjudicator misapplied and misapprehended the provisions of Section 30 of the Small Claims Court Act, thereby violating Articles 25, 47 and 50 of the Constitution;(b)That the trial magistrate/adjudicator erred in law and in fact in determining the question of jurisdiction simultaneously with the merits of the claim, without the benefit of evidence from the parties;(c)That the sixty-day timeline prescribed for the conclusion of proceedings before the Small Claims Court is not a licence to disregard the rules of fair hearing and natural justice or to abandon constitutional rights;(d)That the trial magistrate/adjudicator erred in law and in fact in holding that the claim had been proved in the absence of any evidence being tendered;(e)That the trial magistrate/adjudicator erred in law in holding that he had jurisdiction to determine what was in substance a complex negligence matter, and worse still, in determining it summarily; and(f)That the general damages awarded were inordinately high, the trial court having failed to apply the relevant principles governing the assessment of damages and having had regard to extraneous considerations. 12.The Appellant prayed that the judgment of the Small Claims Court dated 24th April 2025 be set aside and substituted with an order dismissing the suit with costs, and that the Appellant be awarded the costs of the appeal and of the proceedings in the Small Claims Court. The Law Governing Appeals from the Small Claims Court 13.Before turning to the merits, it is necessary to restate the confined nature of the jurisdiction this Court exercises on an appeal of this kind. Section 38 of the Small Claims Court Act provides:“38.Appeals(1)A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.(2)An appeal from any decision or order referred to in subsection (1) shall be final.” 14.It is now well settled that an appeal of this nature is akin to a second appeal: it lies only on matters of law, whether pure or mixed with fact, and this Court will not disturb findings of fact or the exercise of discretion by the trial court save where it is shown that the trial court took into account matters it ought not to have taken into account, failed to take into account matters it ought to have taken into account, misdirected itself in law, or arrived at a decision that is, on the whole, plainly wrong (see Mbogo v Shah [1968] EA 93; Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] eKLR). A ground of appeal that is purely factual, or that invites this Court to re-evaluate evidence and substitute its own view of the facts for that of the trial court, falls outside the jurisdiction conferred by Section 38. A Subsequent Development: Jurisdiction of the Small Claims Court over Road Traffic Accident Injury Claims 15.At the time this appeal was lodged, the position on the jurisdiction of the Small Claims Court over personal injury claims arising from road traffic accidents was as I have described it above: a settled line of single-judge authority, including Gichovi v Kilem, Civil Appeal No. E020 of 2024; [2024] KEHC 10859 (KLR), Irungu v Karanja [2024] KEHC 8162 (KLR), Jane v Runga [2024] eKLR and Ochieng v Mshila, Civil Appeal No. E099 of 2024; [2025] KEHC 2660 (KLR), holding that such claims fall within Section 12(1)(d) of the Small Claims Court Act, and distinguishing the earlier decision in Jerusha Auma Ogwari v Ibrahim Aisha Hersi, Mombasa Civil Appeal No. 223 of 2022; [2023] KEHC 20111 (KLR), which had taken the contrary view. 16.That position has since been authoritatively revisited. On 22nd January 2026, a three-judge bench of this Court sitting at Eldoret (Ogola, Mabeya & Nyakundi, JJ) delivered judgment in Gathaiya v Attorney General & 2 others; & 176 Interested Parties (Petition E008 & E010 of 2024 (Consolidated)) [2026] KEHC 290 (KLR), a consolidated constitutional petition brought specifically to settle, among other things, whether the Small Claims Court has jurisdiction under Section 12(1)(d) of the Act to entertain personal injury claims arising from road traffic accidents. After an extensive review of the scheme of the Act, the procedural limitations it places on parties – including the exclusion of the strict rules of evidence under Section 32, the admission of documentary and expert evidence without calling its makers, and the restriction of appeals to matters of law under Section 38 – and the interaction between the Act and the Insurance (Motor Vehicle Third Party Risks) Act, the bench held, at paragraph 67 of its judgment, as follows:“Accordingly, we find and hold that the Small Claims Court has no jurisdiction to entertain claims for compensation for personal injuries arising out of road traffic accidents under Section 12(1)(d) of the Act.” 17.The Court went on to declare, at order (a) of its judgment, that “claims for personal injuries arising out of road traffic accidents are excluded from Section 12(1)(d) of the Small Claims Court Act. Accordingly, the Small Claims Court has no jurisdiction to entertain such claims forthwith,” and further directed, at order (c), that all cases then pending before the Small Claims Court for such claims be transferred, and be deemed transferred, to the Magistrates' Court with jurisdiction. The Court was, however, careful to record its concern, at paragraphs 87 and 88 of its judgment, for litigants who had filed such claims in good faith before the jurisdictional question was settled, and to guard against occasioning them prejudice. 18.The Chief Justice has since, by guidelines published in the Kenya Gazette on 8th May 2026 implementing that decision, directed that personal injury claims arising from road traffic accidents in which judgment had already been delivered by the Small Claims Court as at 22nd January 2026 “shall be deemed concluded and shall not be reopened or transferred to the Magistrates' Court, except as may be provided by law.” The judgment under appeal in this matter was delivered on 24th April 2025, well before that date, and would ordinarily fall within that saving. However, the qualification “except as may be provided by law” is, in my view, decisive: it preserves the ordinary operation of the law of appeals. Where, as here, an aggrieved party had already invoked the appellate jurisdiction of this Court under Section 38 of the Act before Gathaiya was decided, and that appeal remained pending and undetermined, the administrative finality contemplated by the guidelines cannot operate to insulate the appeal from the correct and current state of the law, nor to deprive this Court of its duty to satisfy itself, as it must at any stage and even on its own motion, that the court below possessed jurisdiction to render the judgment appealed from (Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989] eKLR). 19.I am conscious that Gathaiya is a decision of the High Court, as am I, and that as between coordinate benches of the same court, the rules of strict binding precedent that apply as between courts of different rank do not, in the formal sense, apply. That said, considerations of comity, consistency and the avoidance of conflicting decisions on an identical point of statutory interpretation strongly counsel that a single judge should accord particular weight to, and ordinarily follow, a carefully reasoned decision of a three-judge bench of the same court, unless there is compelling reason to depart from it. No such reason has been shown or is apparent to me here; on the contrary, I find the reasoning in Gathaiya, particularly its analysis of the interplay between the Small Claims Court Act and the Insurance (Motor Vehicle Third Party Risks) Act, persuasive and entirely applicable to the claim before the Small Claims Court in this matter, which was, on all fours, a claim for compensation for personal injuries sustained in a road traffic accident. 20.I therefore hold that this appeal falls to be determined on the footing that the Small Claims Court had, at all material times, no jurisdiction to entertain the Respondent's claim, and that ground (e) of the Memorandum of Appeal, properly understood, succeeds, though not for the reasons originally advanced before the trial court. 21.With that development in mind, I have distilled the following issues for determination:(a)Whether, in light of Gathaiya v Attorney General & 2 others; & 176 Interested Parties [2026] KEHC 290 (KLR), the Small Claims Court had jurisdiction to entertain the Respondent's claim for compensation for personal injuries arising from a road traffic accident;(b)Whether the trial court erred in law in determining the claim on the basis of documents only, without the consent of the parties as required by Section 30 of the Small Claims Court Act, and whether that course occasioned a breach of the Appellant's right to a fair hearing; and(c)Whether the award of general damages of Kshs. 250,000/- discloses an error of legal principle. Analysis and Determination Jurisdiction of the Small Claims Court 22.Ground (e) of the Memorandum of Appeal, read together with the Preliminary Objection raised below, challenges the jurisdiction of the Small Claims Court to entertain what is described as “a complex negligence matter.” The trial court, applying the law as it then stood, correctly held itself bound by the line of authority holding that personal injury claims, including those arising from road traffic accidents, fall within Section 12(1)(d) of the Small Claims Court Act. No fault attaches to the trial court on this score; it cannot be faulted for failing to anticipate a decision that had not yet been rendered. 23.However, for the reasons set out above, this appeal must be determined by reference to the law as it now stands, and the law, as authoritatively settled in Gathaiya, is that the Small Claims Court has no jurisdiction to entertain claims for compensation for personal injuries arising out of road traffic accidents. The Respondent's claim was, in every material respect, precisely such a claim: it sought compensation for injuries sustained when the tuk tuk he was riding was struck by a motor vehicle on a public road. It follows that the Small Claims Court lacked jurisdiction to entertain it at all. 24.Jurisdiction cannot be conferred by consent, waiver, acquiescence or the passage of time, and a decision rendered by a court without jurisdiction is a nullity, of no legal effect, however sound its reasoning might otherwise be (Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989] eKLR). It follows that the judgment of the Small Claims Court delivered on 24th April 2025, together with the decree issued thereon, must be set aside in their entirety as having been rendered without jurisdiction. Ground (e) of the appeal succeeds on this basis, and this finding alone is sufficient to dispose of the appeal in the Appellant's favour. 25.Given that finding, it is strictly unnecessary to determine grounds (a), (b), (c) and (d) of the appeal, which go to the fairness of the process by which the trial court arrived at its judgment. I nonetheless address them, both because they were fully argued and because my findings on them provide useful guidance for the fresh hearing that I direct below. Determination on documents only without consent, and the right to a fair hearing – an alternative ground 26.Even had the Small Claims Court possessed jurisdiction to entertain the Respondent's claim, I would, independently of the finding above, have allowed this appeal on the alternative ground comprising grounds (a), (b), (c) and (d) of the Memorandum of Appeal, which I take together as they raise overlapping facets of a single complaint: that the Appellant was condemned unheard. 27.Section 30 of the Small Claims Court Act provides:“Subject to agreement of all parties to the proceedings, the Court may determine any claim and give such orders as it considers fit and just on the basis of documents and written submissions, statements or other submissions presented to the Court.” 28.The language of that provision is unambiguous. The power of the Small Claims Court to dispense with an oral hearing and determine a claim on documents and written submissions alone is not a general or default mode of procedure; it is conditional, and the condition is the agreement of all parties to the proceedings. Where that agreement is absent, a party retains the right to have the claim against them heard and determined in the ordinary way contemplated by the Act and the Rules made thereunder, that is, by the calling and testing of evidence at a hearing in which each party may participate meaningfully. 29.The record in this matter leaves no room for doubt that the condition in Section 30 was not met. The trial court's own directions of 24th March 2025 imposed the documents-only procedure unilaterally, as a contingency to take automatic effect should the Preliminary Objection fail. When the Appellant's advocates wrote to the trial court that same day protesting that “no such consent had been given by the parties,” the trial court, by its own account at paragraph 17 of the impugned judgment, acknowledged that objection but did not engage with it, resolve it, or explain why the documents-only procedure would nonetheless proceed. The judgment delivered a month later simply proceeded on the basis earlier directed, as though the objection had never been raised. 30.It is not, in my view, a sufficient answer to say, as the trial court in effect said at paragraphs 18 and 19 of its judgment, that the sixty-day timeline under Section 34 of the Act, and the general procedural latitude given to the Small Claims Court under Sections 3(3) and 17, justified dispensing with consent. The sixty-day timeline is, on the authorities, aspirational rather than jurisdictional (see Kartar Singh Dhupar & Company Limited v ARM Cement PLC (In Liquidation), Civil Appeal No. 129 of 2022; [2023] KEHC 2417 (KLR); Biosystems Consultants v Nyali Links Arcade Limited, Civil Appeal No. E185 of 2023; [2023] KEHC 21068 (KLR)), and cannot be invoked to override an express statutory precondition to a mode of determination that dispenses with a party's opportunity to be heard orally. Expedition is a legitimate and important value that the Small Claims Court Act promotes, but it cannot be pursued at the expense of the equally important, and constitutionally anchored, right to a fair hearing. 31.Article 50(1) of the Constitution provides that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. Fairness in this sense imports, at minimum, the right of a party to know the case against them, to respond to it, and to have that response genuinely considered before an adverse order is made (see Judicial Service Commission v Mbalu Mutava & another [2015] eKLR). A party who has expressly declined to consent to having a claim against them determined on documents alone, and whose objection is neither addressed nor overruled on reasoned grounds, cannot be said to have received a fair hearing merely because the court invited written submissions. 32.That this was not an academic or technical complaint is illustrated by the very difficulty the trial court itself encountered and described as “a riddle”: the Statement of Claim, the demand letter and the underlying pleadings identified the offending motor vehicle as registration number KCP 579U, while the Police Abstract, the NTSA search and the Respondent's own Witness Statement identified it as KCP 579Q. This was not a peripheral or immaterial inconsistency; it went to the very identification of the vehicle, and by extension the driver and owner, said to be responsible for the accident. A discrepancy of that character calls for oral testimony capable of being tested by cross-examination, rather than resolution by a court's own inference from the face of the documents. The trial court's resort to the principle that minor inconsistencies which do not go to the root of a case are not fatal (Sate Ride Limited v James Anyega [2010] eKLR) does not answer the more basic objection that the Appellant was never given the opportunity to interrogate the discrepancy at all, precisely because she had not agreed to forgo that opportunity. 33.I have also considered ground (d) of the appeal, that the trial court erred in holding that the claim had been proved “without any evidence being tendered.” I read this, in its proper context, not as a complaint that the trial court considered no material whatsoever, but as another expression of the same underlying grievance: that what was before the trial court was documentary material never tested by oral evidence, in circumstances where the Appellant had objected to that very mode of proof. To the extent ground (d) makes that point, it succeeds for the reasons already given. 34.I do not, however, accept ground (b) to the extent that it suggests it was impermissible, as a matter of law, for the trial court to deal with the Preliminary Objection and the merits of the claim contemporaneously. A court is ordinarily entitled to manage its own process, including by directing that a jurisdictional objection and the substantive dispute be argued together, provided that the process by which the substantive dispute is ultimately determined is itself fair. The vice in this case lies not in the simultaneity of the two questions being addressed, but, as found above, in the imposition of a documents-only mode of determination in the face of an unresolved objection that no consent had been given under Section 30. 35.For these reasons, I find that, quite apart from the want of jurisdiction found above, the trial court erred in law in proceeding to determine the substantive claim against the Appellant on a documents-only basis without the agreement of all parties, contrary to Section 30 of the Small Claims Court Act, and that this error independently occasioned a breach of the Appellant's right to a fair hearing under Article 50(1) of the Constitution. This is a pure question of law going to the process by which the judgment was arrived at, and is properly within the scope of an appeal under Section 38 of the Act. Grounds (a), (c) and (d) of the appeal succeed on this alternative basis, and ground (b) succeeds in part, as explained above. Quantum of general damages 36.Ground (f) of the appeal challenges the award of Kshs. 250,000/- as general damages as inordinately high and as having been arrived at without regard to comparable authorities, and by taking into account extraneous considerations. Ordinarily, an appeal on quantum, being a matter substantially of fact and discretion, sits uneasily within the narrow compass of a Section 38 appeal, and this Court would be slow to interfere absent a demonstrated error of legal principle (see Kenya Bus Services Ltd v Gichuki [1982-88] 1 KAR 872). However, in light of my finding that the judgment as a whole cannot stand for want of a fair hearing on liability, it is neither necessary nor appropriate for me to make a definitive finding on this ground. Quantum, no less than liability, must be assessed on evidence properly and fairly placed before the trial court, and I decline to pre-empt that exercise. I would only observe, for the guidance of the trial court on any fresh hearing, that an award of general damages should be anchored in comparable, reasoned precedent proportionate to the injuries actually proved, and should be arrived at through a transparent process in which both parties have had a genuine opportunity to be heard. 37.The upshot of the foregoing is that this appeal succeeds. The judgment of the Small Claims Court at Mombasa delivered on 24th April 2025, and the decree issued thereon on 5th May 2025, in SCCC No. E099 of 2025, are hereby set aside in their entirety as nullities for want of jurisdiction and, in any event, for breach of Section 30 of the Small Claims Court Act and the Appellant's right to a fair hearing. Parties will bear their respective costs. IT IS SO ORDERED. SIGNED, DATED AND DELIVERED ON 24 JULY 2026.NGAAH JAIRUSJUDGEIn the presence of:.................. Advocate for the Appellant............... Advocate for the Respondent..................... Court Assistant