[2023] KEHC 20111 (KLR)

Ogwari v Hersi (Civil Appeal 223 of 2022) [2023] KEHC 20111 (KLR) (3 July 2023) (Judgment)

Neutral citation: [2023] KEHC 20111 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 223 of 2022

DKN Magare, J

July 3, 2023

Between

Jerusha Auma Ogwari

Appellant

and

Ibrahim Aisha Hersi alias Aisha Hersi Ibrahim

Respondent

(An appeal from the small claims court decision in E192 of 2022)

Judgment

1. This is an appeal from the small claims court given in E192 of 2022. The Appeal raised 5 grounds of Appeal in the initial memorandum of appeal. The memorandum was subsequently amended.

2. The claim was over injuries arising out of an accident which occurred on 1/8/202 when the claimant was a pedestrian. The claim as set out in paragraph 4 is as follows: -“On or about 1/8/2022, the claimant was a lawful pedestrian walking on the pedestrian walkway along Nehru road, when the Respondent and or her authorized driver, agent, and or /servant drove, managed and or controlled motor vehicle registration number KCK 933 V so negligently carelessly, and or recklessly that it ran over the claimant’s foot at Marikiti area whereof the claimant sustained serious injuries. At all material times the respondent was the registered owner and/or beneficial owner and /or insured of motor vehicle registration number KCK 933 V.”

3. The relief sought was compensation at 700,000/= to be determined by the court.

4. The claim is terse and has no particulars of either breach of contract or negligence. ownership was the only basis for claim. Negligence was mentioned without particulars.

Duty of court on issues of law 5. In the case of Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] eKLR, the court of appeal set out the duty of the second appellate court as follows’ -“... I am alive to my duty as a second appellate court to determine matters of law only unless it is shown that the courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. (See: Stanley N. Muriithi & Another versus Bernard Munene Ithiga (2016) eKLR).”

6. The duty of the second appellate court is on points of law. This is the same duty this court has in matters of appeal on points of law. Point of law include exercise of discretion and decision based on no evidence.

7. Appraisal of the evidence or non-compliance of the Evidence Act is not a point of law since under section 32 of the Small claims court act, the court is not bound by strict rules of evidence. This is not to say that the court then becomes a kangaroo court acting on rumours hyperbole and surmises. It is still a court of law bound by common sense and sense of justice according to the law.

8. The said Section 32 of the small claims court act provides as doth: -“32. (1)The Court shall not be bound wholly by the Exclusion of strict Rules of evidence. Rules of evidence2. Without prejudice to the generality of subsection (1), the Court may admit as evidence in any proceedings before it, any oral or written testimony, record or other material that the Court considers credible or trustworthy even though the testimony, record or other material is not admissible as evidence in any other Court under the law of evidence.(2)Without prejudice to the generality of subsection (1), the Court may admit as evidence in any proceedings before it, any oral or written testimony, record or other material that the Court considers credible or trustworthy even though the testimony, record or other material is not admissible as evidence in any other Court under the law of evidence.(3)Evidence tendered to the Court by or on behalf of a party to any proceedings may not be given on oath but that Court may, at any stage of the proceedings, require that such evidence or any part thereof be given on oath whether orally or in writing.(4)The Court may, on its own initiative, seek and receive such other evidence and make such other investigations and inquiries as it may require.(5)All evidence and information received and ascertained by the Court under subsection (3) shall be disclosed to every party.(6)For the purposes of subsection (2), an Adjudicator is empowered to administer an oath.(7)An Adjudicator may require any written evidence given in the proceedings before the Court to be verified by statutory declaration.

9. Regarding discretion, the court have settled the issue in various cases. In the case of Abraham Tenoi Kimala v Job Kipsang Suter [2002] eKLR, the court of appeal stated as follows: -“this Court will not disturb the decision of a judge in the exercise of his discretion except where he has misdirected himself in some matter and as a result arrived at a wrong decision or unless it is manifest from the case as a whole that he was clearly wrong in the exercise of his discretion and that as a result there has been injustice.”

10. In the case of Mbogo and Another v Shah [1968] EA 93 where the Court stated:“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

11. Further in discussing what constitutes matters of law, courts have shied away from pigeonholing the term. However, courts come up with working definitions. In the case of Twaher Abdulkarim Mohamed v Independent Electoral and Boundaries Commission (IEBC) & 2 others, (2014) eKLR, the court stated as doth: -“Although the phrase ‘a matter of law’ has not been defined by the Elections Act, it has been held in Timamy Issa Abdalla vs Swaleh Salim Swaleh Imu & 3 Others, Malindi Civil Appeal No. 39 of 2013 (Court Of Appeal), (Okwengu, Makhandia & Sichale, JJA) of 13. 01. 2014 that a decision is erroneous in law if it is one to which no court could reasonably come to, citing Bracegirdle vs Oxney (1947) 1 All ER 126. See also Khatib Abdalla Mwashetani Vs Gedion Mwangangi Wambua & 3 Others, Malindi Civil Appeal No. 39 Of 2013 (Court Of Appeal), (Okwengu, M'inoti & Sichale, JJA) of 23. 01. 2014 following AG vs David Marakaru (1960) EA 484.

12. Whereas it is settled that ignoring the law of getting it wrong, there is a question of law, there is another second aspect, that is discretion. Wrongful exercise of discretion is not a matter of fact but a point of law. That is why in Review cases, the court cannot set aside the court’s discretion as that is the duty of the Appellate court. This came out succinctly in the case of Peter Gichuki King'ara Vs Iebc & 2others, Nyeri Civil Appeal No. 31 of 2013 (Court of Appeal) (Visram, Koome & Odek, JJA) of 13. 02. 2014,“It was held that it is trite law that the exercise of judicial discretion is a point of law and that the trial court in denying a prayer of scrutiny is exercising judicial discretion. The Court concluded that it would not be feasible for the Court of Appeal to order for a recount and scrutiny as this would involve matters of fact that were within the jurisdiction of the trial court. The court further held that the question of whether the trial judge properly considered and evaluated the evidence and arrived at a correct determination that is supported by law and evidence – with the caveat that the appeal court did not see the witness demeanor – is an issue of law.”

Negligence 13. Other reliefs sought were also included. The claimant filed a statement. In the statement the Claimant set out the nature of the negligence. It is clear to me that the pleading in the case was construed by the form of claim set out in section 24 of the Small Claims Court Act. The said section provides as doth: -“Form of statement of claim Every statement of claim shall contain the following particulars—(a)the name and address of each claimant and, in the case of a representative claim, the name and address of each person represented;(b)the name and address of each respondent;(c)the nature of the claim;(d)the sum of money claimed by each claimant or person represented;(e)the relief or orders sought; and(f)other particulars of the claim as are reasonably sufficient to inform the respondent of the ground for the claim and the manner in which the amount claimed by each claimant or person represented has been calculated.”

14. However, that duty to plead negligence cannot be surmounted. Section 32 of the Small Claims Court Act removed only the aspect of strict application of evidence. It does not remove the duty to make and proof specifically the common law duty of care.

15. The Small Claims Court Act, did not by any extension introduce strict liability in accident cases.

16. I am aware that the jurisdiction of the court under Section 12 is as doth:-“Subject to this Act, the Rules and any other law, the Court has jurisdiction to determine any civil claim relating to—a.a contract for sale and supply of goods or services;b.a contract relating to money held and received;c.liability in tort in respect of loss or damage caused to any property or for the delivery or recovery of movable property;d.compensation for personal injuries; ande.set-off and counterclaim under any contract.(2)Without prejudice to the generality of subsection (1), the Court may exercise any other civil jurisdiction as may be conferred under any other written law.(3)The pecuniary jurisdiction of the Court shall be limited to one million shillings.

17. However, in respect of unquantified claims, like negligence leading to personal injury the small claims court is singularly unsuited to handle the same.

18. In respect of material claims, the claim is already quantified and as such the court proceeds to strict proof as required in the authority of inDavid Bagine v Martin Bundi [1997] eKLR“We must and ought to make it clear that damages claimed under the title "loss of user" can only be special damages. That loss is what the claimant suffers specifically. It can in not circumstances be equated to general damages to be assessed in the standard phrase "doing the best I can". These damages as pointed out earlier by us must be strictly proved. Having so erred, the learned judge proceeded to assess the same for a period of nearly three years. There the learned judge seriously erred. Damages for loss of user of a chattel can be limited (if proved) to a reasonable period which period in this instance could only have been the period during which the respondent's lorry could have been repaired plus some period that may have been required to assess the repair costs. There was no evidence before the learned judge of what period the vehicle would have needed for repairs or for assessment of repair costs.”

19. However, for injury claims, there is need to have a more thorough review of medical evidence, including having a second medical examination. To be able to fully and properly defend such claims, 60 days will definitely be insufficient.

20. The claim here was rail loaded and proceeded without regard to all tenets of pleadings. We do not yet have a case where there is strict liability. . The claim was not fully pleaded but the Adjudicator proceed to give an award. The appellant closed their case. They did not testify. The adjudicator had no jurisdiction to proceed on a case for personal injury that had no particulars of negligence. Negligence must first be pleaded before being proved.

21. In the case of East Produce Kenya Limited v Christopher Astiado Osiro in Civil Appeal No. 43/01 the court held as follows: -“It is trite law that the onus of proof is on he who alleges and in matters where negligence is alleged the position was well laid in the case of Kiema Mutuku –v- Kenya Cargo Hauling Services Ltd 1991 where it was held that “there is as yet no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence.”

22. In the case of Dharmagma Patel & another v T A (a minor suing through the mother and next friend H H) [2014] eKLR, the court had this to say: -“I also take note of the fact that in our legal system, there is no liability without fault. In this regard see Kiema Mutuku v. Kenya Cargo Hauling Services Ltd (1991) 2 KAR 258 where the Court of Appeal held:-“There is, as yet, no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence.”The fault has to be pleaded and proved by evidence at the hearing.”

23. Though the Respondent’s evidence was unopposed, it was not in support of any pleading for negligence. It is not an issue of technically. The Respondent’s case must be such that he the appellant could answer it. In Kenya Power and Lighting Co. Ltd v Hadija Kazungu Ngala [2021] eKLR, justice D.O. Chepkwony, had this to say, to which I entirely concur: -The issue of whether or not the appellant’s case was properly pleaded and proved, I am guided by the decision of the court of Appeal in the case of John Richard Okuku Oloo v South Nyanza Sugar Co Ltd [2013] eKLR, wherein it observed: -“…We agree with the learned judge that a claim for special damages must indeed be specifically pleaded and proved with a degree of certainty and particularity but we must add that, that degree and certainty must necessarily depend on the circumstances and the nature of the act complained of.In the Jivanji case (supra), a decision of this court differently constituted, it was held that the degree of certainty and particularity depends on the nature of the acts complained of. The following passage which partly quotes Coast Bus Service Limited v Murunga & others, Nairobi CA No.192 of 1992 (ur) appears in the Jivanji case:-“It is now trite law that special damages must first be pleaded and then strictly proved. There is a long line of authorities to that effect and if any were required, we would cite those of Kampala City Council v Nakaye [1972] EA 446, Ouma v Nairobi City Council [1976] KLR 297 and the latest decision of this Court on this point which appears to be Eldama Ravine Distributors Limited and another v Chebon civil appeal number 22 of 1991 (UR). In the latest case, Cockar JA who dealt with the issue of special damages said in his judgement:“It has time and again been held by the courts in Kenya that a claim for each particular type of special damage must be pleaded. In Ouma v Nairobi City Council [1976] KR 304 after stressing the need for a plaintiff in order to succeed on a claim for specified damages. Chesoni J quoted in support the following passage from Bowen LJ's judgment at 532-533 in Ratcliffe v Evans [1892] QB 524, an English leading case of pleading and proof of damage.“The character of the acts themselves which produce the damage, and the circumstances under which those acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.”

24. The Respondent herein now posits that the same is out of the Respondent’s hand. I equally agree. The defect is not in the procedure but the purpose of the Act. The purpose of the act is to handle simple matters and not complicated cases where strict proof is necessary. That does not however, leave the Respondent with a duty to Modify the form to fit their claim.

25. The Act under the long title is meant: -“to provide for the jurisdiction and procedures of the Small claims Court and for connected purposes.”

26. The claim to that was being dealt with clearly beyond scope of the small claims court. I therefore hold that such matters involving negligence and injuries arising from road traffic accidents, should be filed in the Chief Magistrate’s Court.

27. If for any reason, they have already been filed in small claims court, the particulars of negligence must be pleaded. The nature of the form used for the claim introduces a mongrel of strict liability and negligence, which is, untenable.

28. The claims for personal injuries for assault should remain in line the long title.

29. Further the claim herein was unquantified. The Respondent was forced to indicate a fictious figure of 700,000/= to be able to fit in the small claims court.

30. When a claim is unquantified it is not a small claim. It is a claim at large. In the case of Nyambati Nyaswabu Erick v Toyota Kenya Ltd & 2others (2019) eKLR Hon Justice D.S Majanja on 21st February, 2019 held as doth:“General damages are damages at large and the Court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method approach should be that comparable injuries would as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly the same.”

31. General damages cannot be quantified in advance. Therefore, there is no need of quantifying damages that are at large.

32. I have found as a matter of law, that though the claim was to be pleaded either in negligence or in breach of contract, that the claim was neither pleaded as a claim in negligence no as a claim in breach of contract. With such a claim, it is not one of the matters that the court could handle as there were no issues before her.

33. Therefore, it was not a proper case for the small claims court. Consequently, I am therefore satisfied that the Appeal is merited and I allow the same.

34. However, what orders commend themselves? The failure in the pleadings is technical in nature. It however goes to the root of the claim.

35. This matter has presented to me a very unique opportunity to clarify the law on the aspects of personal injury related to the Road Traffic accidents. There are also timeline to be kept in service of notices under cap 405, Insurance (Motor Vehicles Third Party Risks), Act

36. I have found that it is impractical for such cases to be in the small claims court. It does not mean that if the pleadings are properly done, the case cannot be in the courts. It is that the act does not contemplate the claims other than assault in these courts.

37. Consequently, I allow the appeal in toto and set aside judgment in the Small Claims Court and in lieu thereof substitute the same with an order striking out the claim in the Small Claims Court. Given the nature of the case, the order that commends itself is that each party bears their own costs.

38. I direct that a claimant to file a proper suit in the Chief Magistrate’s court.

Determination 39. The upshot of the foregoing I make the following orders: -a.The claim was filed without particulars of negligence and as such it was fatally defective and untenable in lawb.The claim for personal injury for accident cases, in view of the notices to be served after filing under Cap 405 and the particulars of negligence which must be proved in common law is singularly unsuited for the small claims court. Personal injury for assault and allied causes can still be filed.c.A claim that has no monetary value, that is a claim a large, where damages have to be assessed is not a small claim.d.The judgment in the small claims claim No. 192 of 2022 is set aside in toto. In lieu thereof, I substitute with an order striking out the entire claim in liminee.The claimant is at liberty to file the same claim under the Chief Magistrate’s Court.f.Each party to bear their own costs.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 3RD DAY OF JULY, 2023. KIZITO MAGAREJUDGEIn the presence of:Miss Julu for the AppellantNo appearance for the RespondentCourt Assistant - Brian