https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10275

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU COUNTY COURT NAME: KISUMU HIGH COURT CASE NUMBER: HCCA/E201/2025 FREDRICK OCHIENG VS STANLEY BRIGEN JUDGMENT ***(Being an Appeal from the Judgment of Hon. G.C. Serem delivered on 19th August 2025 in Kisumu Small Claims Case No. SCC E312 of 2025 Stanley*** ***Birgen v. Fredrick Ochieng)*** # INTRODUCTION/ FACTS OF THE CASE * 1. The Claimant (now Respondent), vide a Statement of Claim dated 30th April 2025, instituted a suit against the Respondent (now Appellant) seeking material damages in the sum of Kshs. 797,150/=, cost of the suit and interest. The nature of the claim was compensation for personal injuries sustained in a road accident which occurred on or about 10th March 2025. 2. In response, the Respondent filed a defense denying the claim. He denied the occurrence of the accident and averred that, if the accident took place, the Claimant was to blame for the same, listing the particulars of the Claimant's negligence. He prayed that the Claimant's suit be dismissed with costs. 3. The suit proceeded for hearing in the Small Claims Court, during which both the Claimant and Respondent called their witness. The Claimant testified that he was travelling in the opposite direction when the Respondent’s vehicle collided with him and blamed the Respondent for the accident, noting that the Respondent had been charged in a criminal case. On the other hand, the Respondent’s witnesses blamed the Claimant, alleging that he was attempting to overtake at the time of the accident. The Respondent also admitted that his vehicle had suffered a tyre burst. 4. The trial court considered the pleadings, evidence adduced, and written submissions filed by the parties, and identified two issues for determination, namely: liability for the accident and whether the Claimant was entitled to the damages pleaded. 5. Subsequently, the court delivered judgment on 17th September 2025, in which the learned magistrate held as follows: 1. ***Liability was found 100% against the Respondent*** 2. ***The Claimant was awarded material damages in the sum of Kshs. 797,150/=*** 3. ***The Claimant was awarded costs of the suit and interest from the date of filing until full payment*** 4. ***A stay of execution for 30 days was granted.*** 6. Being dissatisfied with the judgment of the trial court, the Respondent (now Appellant) lodged the present appeal vide a Memorandum of Appeal dated 18th September, 2025, raising the following grounds: - 1. *The learned Trial Adjudicator erred in law and in fact in proceeding to deliver a judgment without jurisdiction or when her jurisdiction had been extinguished by law.* 2. *The learned Trial Adjudicator erred in law and in fact in failing to find that Section 34(1) of the Small Claims Court Act deprived the court of jurisdiction once the 60 days stipulated therein was surpassed.* 3. *The learned Trial Adjudicator failed to consider the issue of the court’s jurisdiction and the binding authorities of the Supreme Court, the High Court and the Court of Appeal cited before her, and completely ignored the Appellants submissions thereon, and thus reached a decision without jurisdiction.* 4. *The learned Trial Adjudicator erred in law in failing to find that the* *Claimant contributed to the causation of the accident.* * + 1. *The learned Trial Adjudicator erred in law in failing to find that the assessment report was not proved by its maker, nor were the credentials of the maker established as either a licensed mechanic or certified motor vehicle assessor.* 2. *The learned Trial Adjudicator erred in fact and in law in holding that the Appellant did not call any evidence, while indeed the Appellant and RW-2 testified.* 3. *The learned trial adjudicator erred in law and in fact in completely ignoring the evidence of the Appellant and the Appellant’s witness, RW-2.* 4. *The learned trial adjudicator erred in law in finding for the Respondent on the basis of an assessment report that was not proved and which had no probative value.* 5. *The learned trial adjudicator erred in law and in fact in relying on an invoice to hold that the Respondent paid for repairs to his vehicle.* 6. *The learned trial adjudicator erred in law in awarding special damages that were not proved.* 1. The appeal was canvassed by way of written submissions. Before delving into the submissions of both parties, this court notes that, being the first appellate court, it is required under Section 78 of the Civil Procedure Act and as was held in ***Selle v. Associated Motor Boat Co. Ltd [1969] E.A 123***, to re-evaluate, re-assess and analyse the evidence adduced before the trial court and arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witness when testify. # SUBMISSIONS BY PARTIES ## Appellant’s Submissions 1. The Appellant submitted on three issues: the trial adjudicator had lost and thus lacked jurisdiction; that negligence had not been proved to warrant a finding of 100% liability against him; and that the damages awarded had not been proved. 2. On jurisdiction, the Appellant submitted that the trial adjudicator had lost jurisdiction by failing to hear and determine the claim within the mandatory sixty-day period prescribed under Section 34(1) of the Small Claims Court Act. It was contended that the claim had been filed on 2nd May 2025 and judgment delivered on 19th August 2025, a period of 107 days, which was beyond the statutory timeline. The Appellant argued that the court was divested of jurisdiction upon expiry of the sixty days, rendering all subsequent proceedings and judgment a nullity. The Appellant further faulted the trial adjudicator for failing to address the issue of jurisdiction despite it having been raised. 1. In support of this position, the Appellant relied on ***Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd*** and ***Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others*** for the principle that jurisdiction was conferred by the constitution or statute and that a court acting without jurisdiction must down its tools. Reliance was also placed on ***Risk Africa Innovatis Limited v Smartmatic International Holdings B.V.A & 3 Others***, ***Martha Wangari Karua v Independent Electoral & Boundaries Commission & 3 Other***s, ***Lemanken Aramat v Harun Maitamei Lempaka & 2 Others***, ***Aprim Consultants v Parliamentary Service Commission & Another***, ***Republic v Public Procurement Administrative Review Board & Another Ex Parte Wajir County Government***, and ***Nigerian Authorities including All Nigerian Peoples Party & 2 Others v Alhaji Mohammed Goni & 8 Others and Senator John Akpanudoedehe & Others v Godswill Obot Akpabio & Other***s, for the proposition that statutory timelines were mandatory, immutable, and incapable of extension, and that jurisdiction lapsed upon expiry of the prescribed period. 2. The Appellant further submitted that the High Court had consistently interpreted Section 34(1) of the Small Claims Court Act as jurisdictional. Reliance was placed on ***Makanda v Osita, Kartar Singh Dhupar & Company Limited v ARM Cement PLC*** (In Liquidation), ***Odeny v Nur & Another, Philip Rumba, Principal, BOM, Bujwanga Secondary School & Another v Anyango, Mwasya v Githinji, UAP Insurance Company Limited v Almasi Kenya Company Limited***, ***Asachi Works Limited v Kathenge***, and ***Omondi v Endovo,*** which held that judgments delivered outside the sixty-day period were nullities for want of jurisdiction. The Appellant acknowledged contrary decisions such as ***Biosystems Consultants v Nyali Links Arcad***e and ***Lumumba v Gift Gas Limited***, where the timeline had been treated as administrative, but submitted that those decisions had been rejected in Makanda v Osita. 1. On that basis, the Appellant urged the court to find that the trial court had lost jurisdiction upon expiry of sixty days from the date of filing, rendering the judgment delivered after 107 days void and of no legal effect. 2. On the issue that negligence had not been proved to warrant a finding of 100% liability, the Appellant submitted that the trial court erred in finding him 100% liable despite conflicting evidence that did not conclusively establish negligence on his part. It was submitted that while the Respondent alleged that the Appellant’s vehicle swerved into his lane, the Appellant maintained that a rear tyre burst occurred, after which he remained in his lane, and that the Respondent, while overtaking a tractor, veered into his lane and caused the collision. This version was supported by the Respondent’s passenger, who testified that the Appellant was not speeding. 3. The Appellant further submitted that the police evidence was inconclusive, as the police abstract indicated that he had been charged with careless driving but no sketch plan, inspection report, or basis for apportionment of liability was produced. It was also submitted that the damage pattern was consistent with the Respondent returning to his lane after overtaking. 4. The Appellant therefore submitted that negligence had not been proved on a balance of probabilities and that a finding of 100% liability was not justified. Reliance was placed on ***Husein Omar Farah v Lento Agencies [2006] eKLR*** and ***Barclay Steward Limited & Another v Waiyaki [1982–88] 1 KAR 1118***, and it was urged that liability ought to have been apportioned equally at 50:50. 5. On damages, the Appellant submitted that the Respondent failed to prove both liability and quantum of loss. It was contended that the trial court wrongly relied on an assessment report and invoice that lacked probative value and were not properly proved. 6. The Appellant submitted that the assessment report by Vital Automobile Valuer Assessors was not proved as its maker was not produced in court, and the court could not verify the qualifications or authenticity of the report. It was further submitted that Rule 5 of the Small Claims Court Rules did not dispense with the requirement of proof or competence of the maker. Reliance was placed on ***Mwagandi v Lewa [2025] KECA 1036 (KLR)*** and ***Parkar & Another v NQ & 2 others [2023] KECA 908 (KLR).*** 7. The Appellant further relied on Section 35 of the Evidence Act, submitting that documentary evidence was only probative where the maker had personal knowledge and was called to testify, subject to limited exceptions. 8. On the invoice for Kshs. 775,000/= produced as proof of repair costs, the Appellant submitted that it did not amount to proof of payment unless supported by a receipt or marked “paid,” and therefore could not prove actual loss. Reliance was placed on ***Total (Kenya) Limited v Janevams Limited*** and ***Great Lakes Transport Co (U) Ltd v Kenya Revenue Authority***. It was submitted that, an invoice is ordinarily only a quotation or demand for payment and cannot, on its own, establish actual loss. 9. The Appellant therefore submitted that the damages were not proved to the required standard and that the award was unsupported in law. 10. The Appellant urged the court to allow the appeal with costs. ## Respondent’s Submissions 1. The Respondent framed the first issue as whether the appeal as preferred is competent. The Respondent submitted that the appeal was incompetent save for issues of jurisdiction and liability, as section 38 of the Small Claims Court Act restricted appeals to matters of law. 2. The Respondent therefore submitted that the court ought to have disregarded all grounds that raised factual issues. It was further submitted that the memorandum of appeal raised issues that fell outside the appellate jurisdiction of this court. 3. On jurisdiction, the Respondent submitted that Section 34(1) of the Small Claims Court Act did not oust jurisdiction merely because proceedings exceeded sixty days, as it required matters to be determined as far as practicable within that period. 4. The Respondent submitted that any delay had been occasioned by the Appellant’s conduct, including requests for time to file responses, amendments of pleadings, and joinder of a third party, which delayed the hearing process. 5. It was further submitted that the Appellant sought adjournments due to absence of witnesses, while the Respondent’s witnesses were ready to testify, and the matter proceeded only after such delays. 6. The Respondent therefore submitted that the Appellant could not rely on delays of his own making to defeat the jurisdiction of the court. Reliance was placed in ***Lumumba v. Rift Gas Limited (Civil Appeal E805 of 2022) [2023] KEHC 25998 (KLR) (Civ) (30 November 2023 (Judgment). Wekesa v Karumba (Civ Appeal e682 of 2022) [2024] KEHC 8283 (KLR) (28 June 2024) Judgment), Crown Beverages Limited v MFI Document Solutions Limited [2023] KEHC 58 (KLR), & Lusoi Greens Limited v. Tibi [2025] KEHC 3307 (KLR),*** submitting that, unlike the Appellant’s authorities, theirs narrowed to the interpretation of Section 34 of the Small claims Court Act. 7. On liability, the Respondent submitted that the burden of proof rested on the Appellant, but that the Respondent discharged its evidential burden through witness testimony, including CW1 the investigating officer, who arrived at the scene shortly after the accident and attributed responsibility to the Appellant. It was also submitted that the Appellant had been charged with careless driving in Tamu Traffic Case No. E016 of 2025, thus reinforcing negligence. 8. The Respondent further submitted that the evidential burden shifted to the Appellant, who failed to rebut the claim and engaged in dilatory conduct including seeking summons for the Base Commander Muhoroni, obtaining an adjournment, and subsequently failing to pursue the said summons. 1. It was also submitted that the Appellant’s version of events was inconsistent and properly rejected by the trial court, and that the appellate court could not interfere with factual findings under section 38 of the Act. 2. The Respondent further submitted that submissions could not constitute evidence and could not introduce new factual narratives as held in ***Moi v Muriithi & Another (Civil Appeal 240 of 2011) [2014] KECA 642 (KLR) (9 May 2014) (Judgment)***. On the whole, the Respondent maintains that liability was properly established against the Appellant and urges that the appeal, being unmeritorious, be dismissed with costs. 3. On evidentiary issues, the Respondent submitted that the trial court properly exercised discretion under section 32(2) of the Small Claims Court Act, which allowed a relaxed evidentiary standard. 4. On damages, the Respondent submitted that the claim was specifically pleaded and proved through an assessment report and supporting testimony of the mechanic who made repairs, supported by an invoice, and that the Appellant failed to challenge the evidence, rendering the appeal without merit. 5. Therefore, the Respondent submitted the appeal as ill conceived, wrongly brought and an inconceivably frivolous, and prayed this court to dismiss it in entirety with costs. # ISSUES FOR DETERMINATION 1. Whether the trial court lacked jurisdiction to determine the claim after the expiry of the sixty-day period prescribed under section 34(1) of the Small Claims Court Act 2. Whether the trial adjudicator erred in finding the Appellant wholly liable for the accident. 3. Whether the Respondent proved his claim for material damages to the required standard, thereby justifying the award of Kshs. 797,150/=. 1. Who bears the costs of the suit? # ANALYSIS AND DETERMINATION ## Whether the trial adjudicator lacked jurisdiction to determine the claim after the expiry of the sixty-day period prescribed under section **(34) of the Small Claims Court Act** 1. Jurisdiction is the foundation upon which the authority of a court rests. Without jurisdiction, a court has no power to make one more step and any proceedings undertaken without jurisdiction are a nullity. This principle was authoritatively stated in ***Owners of the Motor Vessel "Lillian S" v Caltex*** ***Oil (Kenya) Ltd* [1989] KLR 1** and reaffirmed by the Supreme Court in ***Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR***, where it was held that a court's jurisdiction flows from the constitution or statute and cannot be expanded by judicial craft or the consent of parties. 1. The Appellant contended that the trial adjudicator lost jurisdiction upon the expiry of sixty days from the date of filing the claim as stipulated under Section 34(1) of the Small Claims Court Act. According to the Appellant, the claim was filed on 2nd May 2025 while judgment was delivered on 19th August 2025, a period of 107 days, thereby rendering the entire proceedings and judgment a nullity. 2. The Respondent, on the other hand, submitted that Section 34(1) does not extinguish the jurisdiction of the Small Claims Court merely because a matter is not concluded within sixty days. It was argued that the provision requires the court to determine matters "as far as practicable" within that period and that any delay in the present matter was substantially occasioned by the Appellant through amendments of pleadings, joinder proceedings and requests for adjournments. 3. This court has considered the competing arguments and the authorities relied upon by the parties. While there exist decisions that have interpreted the sixty-day period as mandatory and jurisdictional, there are equally persuasive decisions holding that the provision is directory and intended to facilitate the expeditious disposal of disputes rather than to invalidate proceedings conducted beyond the prescribed period. 1. In this court's view, Section 34(1) must be interpreted purposively and in a manner that advances rather than defeats the objectives of the Small Claims Court Act. In interpreting that provision, the court must give effect to every word employed by Parliament. While Section 34(1) provides that the court "shall" determine every claim within sixty days from the date of filing, that obligation is expressly qualified by the phrase "so far as is practicable." Those qualifying words cannot be ignored or rendered superfluous. Their inclusion demonstrates a legislative recognition that circumstances may arise, whether attributable to the court or the parties, which make strict compliance with the sixty-day timeline impossible. Consequently, the provision is better understood as imposing a statutory duty of expedition rather than prescribing a rigid jurisdictional limitation. 2. This interpretation finds further support in *Kazungu v Kazungu (Civil Appeal E878 of 2023) [2024] KEHC 16782 (KLR)* where the court observed that, although Section 34(1) requires proceedings to be concluded within sixty days, the provision does not expressly state that failure to comply renders subsequent proceedings or judgment a nullity. The absence of such an express consequence militates against an interpretation that automatically extinguishes jurisdiction upon expiry of the prescribed period. Had Parliament intended non-compliance to invalidate proceedings or divest the court of jurisdiction, it would have said so in clear and unequivocal terms. 3. Further, the record demonstrates that the proceedings were not delayed solely by the court. The Appellant sought leave to amend pleadings, pursued joinder of a third party and obtained adjournments to secure witnesses. Having actively participated in the proceedings and contributed to the delay, the Appellant cannot subsequently rely on that very delay to challenge the jurisdiction of the court. To permit such an argument would offend the well-established equitable principle that “no litigant should be allowed to benefit from his own conduct or wrongdoing. A party who, by his own act or omission, occasions a particular state of affairs cannot subsequently rely on that very sate of affair to obtain a legal advantage or defeat the rights of another” 1. Such an interpretation also accords with the purpose of the Small Claims Court Act, which is to provide a simple, accessible and expeditious forum for the resolution of disputes. Construing Section 34(1) as automatically divesting the court of jurisdiction upon the expiry of sixty days, irrespective of the reasons for the delay, would elevate procedural timelines above the substantive determination of disputes and frustrate rather than advance the legislative objective of the Act. 2. Consequently, this court finds that the learned trial adjudicator did not lose jurisdiction merely because judgment was delivered after the expiry of sixty days. The Appellant has therefore failed to establish that the impugned judgment is a nullity on account of want of jurisdiction. ## Whether the trial adjudicator erred in finding the Appellant wholly liable for the accident 1. The Appellant submitted that the evidence before the trial court was conflicting and incapable of sustaining a finding of one hundred percent liability against him. He maintained that his vehicle suffered a tyre burst and remained in its proper lane while the Respondent, who was allegedly overtaking a tractor, veered into his lane and caused the collision. He further argued that the police evidence was inconclusive and that liability ought to have been apportioned equally. 2. The Respondent maintained that negligence was established through the testimony of the investigating officer who visited the scene shortly after the accident and attributed blame to the Appellant. It was further submitted that the Appellant had been charged with careless driving and failed to rebut the Respondent's evidence. 3. Having independently reviewed the record, this court notes that the trial court had the advantage of observing the demeanour of the witnesses and assessing their credibility. An appellate court will not readily interfere with findings of fact unless it is demonstrated that the trial court misapprehended the evidence or acted on wrong principles. 1. The evidence produced by the Respondent was consistent that the Appellant's vehicle left its proper lane and collided with the Respondent's vehicle. The investigating officer's testimony supported that account, and the fact that the Appellant admitted suffering a tyre burst did not, by itself, exonerate him from liability. 2. Although the Appellant produced an alternative version of events and called a witness in support thereof, the trial court considered that evidence and found it less credible than the Respondent's case. Contrary to the Appellant's assertion, the record does not support the contention that the trial adjudicator ignored the defence evidence. Rather, the judgment demonstrates that the court evaluated the rival versions before preferring the Respondent's account. 3. The Appellant has not demonstrated any misdirection on the part of the trial court or shown that the finding on liability was against the weight of the evidence. Mere existence of conflicting testimony is not sufficient to warrant appellate interference where the trial court properly evaluated the evidence and reached a reasonable conclusion. 4. Accordingly, this court finds no basis for interfering with the finding holding the Appellant wholly liable for the accident. **Whether the Respondent proved his claim for material damages to the required standard, thereby justifying the award of Kshs. 797,150/=** 1. The Appellant challenged the award of material damages on the ground that the assessment report was not proved by its maker and that the invoice relied upon by the trial court did not constitute proof of payment. It was submitted that the documents lacked probative value and that the Respondent consequently failed to prove special damages. 2. The Respondent submitted that proceedings before the Small Claims Court are governed by a flexible evidentiary regime under Section 32(2) of the Small Claims Court Act and that the assessment report, mechanic's testimony and supporting invoice sufficiently established the claim. It was further submitted that the Appellant did not effectively challenge that evidence. 3. It is trite law that special damages must be specifically pleaded and strictly proved. The degree of proof required, however, depends on the nature of the claim and the evidence available in the circumstances of each case. 4. The record shows that the Respondent specifically pleaded material damages in the sum of Kshs. 797,150/=. In support of the claim, he produced an assessment report together with an invoice reflecting the cost of repairs and called the mechanic who carried out the repairs to testify regarding the work undertaken. 5. While the Appellant argues that the assessor ought to have testified, proceedings before the Small Claims Court are intended to provide an accessible and less technical forum for the determination of disputes. Section 32(2) expressly permits the court to adopt procedures that facilitate the just and expeditious resolution of claims without undue regard to technical rules of evidence. 6. The documentary evidence was corroborated by oral testimony and was subjected to cross-examination. The Appellant did not produce any contrary assessment report, challenge the authenticity of the documents or demonstrate that the repairs were unnecessary or exaggerated. The objection raised is therefore largely technical and does not go to the substance of the claim. 7. Equally, although an invoice does not invariably prove payment, the evidence before the trial court comprised more than the invoice alone. The mechanic's testimony and the accompanying assessment report provided sufficient evidentiary support for the repairs undertaken and the corresponding cost. 8. Having re-evaluated the evidence in its entirety, this court is satisfied that the Respondent discharged the burden placed upon him and proved his claim for material damages on a balance of probabilities. The Appellant has not demonstrated that the trial adjudicator relied on inadmissible evidence or applied an erroneous principle of law in making the award. 9. Consequently, this court finds that the award of Kshs. 797,150/= was properly proved and was justified by the evidence on record. ## Who bears the cost of the suit 1. Section 27 of the Civil Procedure Act vests the court with discretion to determine by whom and to what extent costs shall be paid, the general rule being that costs follow the event unless sufficient reason exists to order otherwise. 2. In the present appeal, the Appellant challenged the trial court's findings on jurisdiction, liability and material damages. Having carefully reconsidered the record and the rival submissions, this court has found that none of the grounds of appeal has merit and that the judgment of the trial court was sound both in fact and in law. 3. The Respondent has successfully defended the appeal and has been put to the expense of doing so. The court finds no exceptional circumstances warranting a departure from the general principle that costs follow the event. 4. Accordingly, the costs of this appeal shall be borne by the Appellant. # DISPOSITION 1. Having carefully considered the record of appeal, the pleadings, the rival submissions by the parties and the applicable law, this Court makes the following order. 1. Appeal is hereby dismissed in its entirety 2. The judgment and decree of the Small Claims Cout in Kisumu Small Claims Case No. SCC E312 of 2025 delivered on 19th August 2025 are hereby upheld. * 1. The Respondent shall have the costs of this appeal. 2. Interest on the taxed costs shall accrue at court rates from the date of taxation until payment in full. It is so ordered. SIGNED BY/FOR: **□ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ABDI M. HASSAN** Kisumu High Court High Court Civil Date: 2026-07-09 11:29:34