https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8169

**Republic of Kenya** **In the High Court of Kenya at Nairobi** **Milimani Law Courts** **Civil Appellate Division** **Small Claims Appeal No. E152 Of 2025** **Paul Mburu Kariuki…........................................................................................ Appellant** ***-Versus-*** **Amos Njoora Mwangi..................................................................................1st Respondent** **Dr. Julia Kagai…………………………………..………………..………..2nd Respondent** *(Being an appeal from the judgment and decree of Hon. Nellieanne Wambui Ng’ang’a (RM/Adjudicator) delivered on 24 June 2025 in Small Claims Court Civil Claim No. 242 of 2025)* **Judgment** **Background** 1. This appeal arises from a road traffic accident that happened along Mumias South Road in Buruburu within Nairobi County. The Appellant instituted Small Claims Court Civil Claim no. 242 of 2025 seeking Kshs. 385,593.00 in special damages for the repair of his motor vehicle registration number KCJ 620W. The Appellant’s case before the trial court was that motor vehicle registration number KCS 635 registered in the name of the 1st Respondent and driven by the 2nd Respondent veered off its lawful lane and rammed into the right side of his car occasioning extensive damage to it. The Appellant averred before the trial court that the accident was solely caused by the 2nd Respondent’s negligence. 2. The suit was disposed of by way of written submissions pursuant to Section 30 of the Small claims Court Act. In its judgement, the trial court dismissed the suit on the grounds that the Appellant had failed to prove that the 1st Respondent was the registered owner of motor vehicle registration number KCS 635E. The Appellant impugns that decision. **The Appeal** 1. In a Memorandum of Appeal dated 23 July 2025, the Appellant articulates the following grounds of appeal: - 2. *The learned magistrate erred in law and in fact by failing to render a determination on the Appellant’s case as against the 2nd Respondent, despite the said Respondent having been properly enjoined (sic) in the suit and duly served;* 3. *The learned magistrate misdirected herself in finding that there is no nexus between the 1st Respondent and the ownership of motor vehicle registration number KCS 635E yet the said Respondent was sued as both the registered as well as a beneficial owner;* 4. *The learned magistrate erred in law and in fact by delivering a judgement that was incomplete thus undermining the issues in controversy between the parties resulting in injustice to the Appellant;* 5. *The learned magistrate erred in law and in fact by failing to evaluate the entire evidence on record including the pleadings and the written submissions by parties and making a finding that the Appellant had not proved his case to the required standard, thereby arriving at wrong finding of issues;* 6. *The learned trial magistrate erred in law and in fact in otherwise failing to exercise her discretion in a proper manner resulting in injustice to the Appellant;* 7. *The learned trial court did not evaluate the evidence on record nor apply the required standard of proof.* **The Appellant’s submissions** 1. In his written submissions dated 30 January 2026, the Appellant identifies one issue for determination being whether the trial court rendered an incomplete judgement by failing to determine all issues placed before it. 2. In support of his case, the Appellant argues that the judgement rendered by the trial court was incomplete on three grounds being: first, that the court did not address the issue of the beneficial ownership of the 1st Respondent’s motor vehicle, second, that the court did not determine the Appellant’s claim against the 2nd Respondent, and third, that the court did not address the issue of liability and quantum despite these being pleaded and supported by evidence. 3. The Appellant avers that he demonstrated through evidence presented to the trial court that the 1st Respondent was the registered as well as the beneficial owner of motor vehicle registration number KCS 635E. He further contends that he sufficiently demonstrated that the 1st Respondent was the policy holder of the said motor vehicle which had been insured with Directline insurance company limited under policy number 00225586. 4. It is the Appellant’s further case that he was able to demonstrate that the 1st Respondent subsequently sold the said car to one Evans Obare Ogechi after the accident. 5. The Appellant also contends that the 2nd Respondent was sued as the driver of the said motor vehicle at the material time. He avers that he had relied on the police abstract which was adduced before the trial court as exhibit number 5. It is the Appellant’s case that the trial court did not make a determination on this issue. 6. The Appellant further avers that the trial court did not address the issue of liability and quantum in total despite the Appellant having pleaded and submitted on the issues. 7. Consequently, the Appellant urges this court to allow the appeal as prayed, set aside the judgement of the trial court, re-evaluate the evidence on record, enter judgement as prayed in the claim and award costs of the appeal and before the trial court. **Analysis and Determination** 1. I have carefully considered the appeal, submissions in support thereof and the trial record and I have distilled the following issues for determination: - 2. *Whether the appeal is properly before the Court under Section 38(1) of the Small Claims Court Act.* 3. *Whether the trial court rendered an incomplete judgement by failing to determine all issues placed before it.* 4. The High Court’s jurisdiction on appeal is provided for in *Section 38(1)* of the *Small Claims Court Act* which provides as follows: ***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.* 1. On what constitutes a “question of law” the case of ***M’riungu and Others -vs- R******[1982-88] 1 KAR 360*** is instructive. Chesoni AJA held as follows on “matters of law”: - *… We would agree with the views expressed in the English case of Martin v Glyneed Distributors Ltd (t/a MBS Fastenings) [1983] 1 CR 511 that where a right of appeal is confined to questions of law only, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of law or mixed findings of fact and law, and, it should not interfere with the decision of the trial court or first appellate court unless it is apparent that; on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad law.* 1. More recently, in ***J N & 5 Others -vs- Board of Management, St. G School Nairobi & Another***[2017] eKLR, the Court held as follows on the distinction between a question of law and a question of fact: - *… In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence as well as inferences arising from those facts. Such a question is distinct from a question of law, which must be answered by applying relevant legal principles. The answer to a question of fact (a "finding of fact") usually depends on particular circumstances or factual situations.* 1. Looking at the grounds of appeal and the submissions in support, it is apparent that the Appellant’s main grievance as identified in the issue for determination is on the alleged failure by the trial court to determine all the issues framed. A question whether the trial court addressed all the issues before it for determination is a question of law by virtue of the provisions of Section 22(b) of the Small Claims Court Act which provides that the record of the court shall include, *“summaries of the facts of the issues in dispute in respect of those claims as determined and recorded by the Court during the hearing of the claims…”* 2. The court is, therefore, satisfied that the grounds raised in the memorandum of appeal on the alleged failure to determine all the issues before the trial court is a matter of law which this court has jurisdiction to determine. 3. Section 22(b) of the Small Claims Court Act enjoins the court to maintain a record of the court which shall include the identified issues in dispute and the determination of the court thereof. The court is, therefore, under an obligation to identify the issues in dispute as set out by the parties and to render a determination on each of the issues. A failure to determine any issue in dispute is a dereliction of that duty. The Court of Appeal in ***Kukal Properties Development Ltd v. Tafazzal H. Maloo & 3 Others [1993] KECA 65 (KLR)*** has underscored this duty as follows: *Nineteen issues were framed for decision by the judge. In his judgement, the judge only dealt with 9 issues leaving 10 undecided. It was the submission of Mrs. Dias, for the respondents, that the issues that the judge did not deal with explicitly he had covered by implication. With respect this is not borne out by a perusal of the judgement and in any event this would constitute a violation of the express provisions of order 20 rule 5 of the Civil procedure Rules which provides that:* *O 20 r 5. In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefore, upon each separate issue” (emphasis added)* *Once issues were framed, the judge was obliged to decide each and every one of them and in failing to do so he committed a serious breach of procedure.* 1. It has been argued by the Appellant that the trial court failed to determine the issue whether the 1st Respondent was the beneficial owner of motor vehicle registration number KCS 635E. It has also been argued by the Appellant that the trial court failed to make a determination on the liability of the 2nd Respondent who had been sued as the driver of the said motor vehicle at the material time. Connected to this is also an allegation of a failure to determine liability and quantum. 2. A perusal of the trial court judgement shows that indeed the trial court failed to make a determination on the issue of beneficial ownership despite the same having been pleaded by the Appellant. In the relevant part of the judgement, the trial court merely notes that there is no document which had connected the 1st Respondent to the said motor vehicle but goes ahead to make a conclusion that the NTSA records were contradictory and had no nexus to the 1st Respondent. 3. Section 8 of the Traffic Act provides as follows regarding establishing the identity of the owner of a motor vehicle: *The person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle. [Emphasis added]* 1. Whereas the Traffic Act under Section 8 recognises that the primary way of identifying the owner of a motor vehicle is through registration, the same provision gives room to proof of ownership through other means. Ownership may be through registration or may be beneficial and it is upon a trial court to evaluate the relevant evidence to ascertain whether ownership has been proven. The trial court, therefore, erred in law by failing to consider evidence of beneficial ownership. 2. Further, the trial court judgement did not address the 2nd Respondent who was sued as the driver of the said motor vehicle on the material day. Despite making a finding that the 1st Respondent was not the registered owner of the said motor vehicle, the trial court failed to address the allegation that the 2nd Respondent was the driver of the motor vehicle and her liability. 3. I am satisfied that the trial court misdirected itself and committed an error of law which renders the whole judgement unsustainable. The same is hereby set aside in its entirety. Noting the limited power of this court as an appellate court under Section 38 of the Small Claims Act which restricts appeals to matters of law and the failure by the trial court to examine evidence before it and to make a determination on the issues identified above, I am constrained to remit the matter back to the trial court for a fresh trial. This is necessary because the role of the trial court is to assess the primary facts and to reach conclusions while the appellate court, when restricted to only matters of law, exercises the role of assessing whether the trial court reached the correct conclusion having assessed the primary facts. This distinction was captured by Lord Denning in ***Bracegirdle vs. Oxley (2) [1947] 1 ALL E.R. 126*** at p 130 as follows: *…Primary facts are facts which are observed by the witnesses and proved by testimony; conclusions from those facts are inferences deducted by a process of reasoning from them. The determination of primary facts is always a question of fact. It is essentially a matter for the tribunal who sees the witnesses to assess their credibility and to decide the primary facts which depend on them. The conclusions from those facts are sometimes conclusions of fact and sometimes conclusions of law. In a case under the Road Traffic Act, 1930, s. 11, the question whether a speed is dangerous is a question of degree and a conclusion on a question of degree is a conclusion of fact. The court will only interfere if the conclusion cannot reasonably be drawn from the primary facts…* 1. Further, recognising that a party dissatisfied by a decision of the Small Claims Court has only one shot at appeal before the High Court, it is not prudent for the appellate court to make determinations of fact on matters that were not determined by the trial court hence denying a party who may be dissatisfied an opportunity to appeal. 2. Noting the Chief Justice’s directions contained in Kenya Gazette Notice number 6567 dated 4 May 2026 for matters involving road traffic accidents and injuries to be handled before the Magistrates’ Courts, it is hereby my direction that this matter be placed before the Magistrates’ Court at Nairobi for fresh hearing and disposal on a priority basis. There shall be no orders as to costs as the Respondents did not participate in the appeal. Orders accordingly. **Delivered, Dated** and **Signed** at **Nairobi** this **11th** day of **June,** **2026.** **Nabil M. Orina** **Judge** ***Judgment virtually delivered virtually in the presence of:*** ***Ms. Ruto h/b for Mr. Otieno for the Appellant*** ***N/A for the Respondent*** ***Lisa – Court Assistant***