https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11251

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS COUNTY COURT NAME: MACHAKOS HIGH COURT CASE NUMBER: HCCA/E183/2022 ROSEMARY LOICE NYAKIRE MUGO VS BRISTAL PARK HOSPITAL LTTD JUDGMENT (Being an appeal from the Judgment and Decree of Hon. B.A. Luova, Adjudicator, delivered on 24th November, 2022 in Machakos Small Claims Court SCCCOMM No. E206 of 2022) JUDGMENT BACKGROUND 1. The appeal before this Court arises from the judgment of the Small Claims Court at Machakos delivered on 24th November, 2022 in SCCCOMM No. E206 of 2022. The learned Adjudicator found the present Appellant, Rosemary Loice Nyakire Mugo, wholly liable for a road traffic accident involving motor vehicle registration number KCK 443Y and motor vehicle registration number KCE 949M. Judgment was entered in favour of the Respondent, Bristol Park Hospital Limited, in the sum of Kshs. 428,575/=, being Kshs. 425,675/= for repair costs and Kshs. 2,900/= for re-inspection charges, together with costs and interest. 2. The Respondent’s claim before the Small Claims Court was founded on negligence. It pleaded that on or about 24th August, 2019 at approximately 12.30 a.m., its motor vehicle registration number KCK 443Y, an ambulance, was being driven along Nairobi–Mombasa Road at Sabaki when motor vehicle registration number KCE 949M, owned by the Appellant and driven by her driver, servant and/or agent, was so negligently driven that it collided with the Respondent’s motor vehicle, thereby occasioning material damage. 1. The Respondent further pleaded that the claim was brought under the doctrine of subrogation on behalf of its insurer, ICEA Lion General Insurance Company Limited. The Respondent sought special damages in the sum of Kshs. 471,675/= made up of repair costs, re-inspection fees and investigation fees. 2. The Appellant denied the claim. In her response to the statement of claim, she pleaded, inter alia, that the claim had been filed out of time; that she was not liable for the accident; and that if any accident occurred, the same was caused or substantially contributed to by the negligence of the Respondent’s driver. 3. The learned Adjudicator, after hearing the parties, found that the claim was not statute- barred, held the Appellant 100% liable, and awarded the Respondent Kshs. 428,575/= as pleaded and proved special damages, excluding the tracing fees which were supported only by an invoice and not proof of payment. 4. The Appellant, being dissatisfied with the whole judgment, filed the present appeal. Grounds of Appeal 1. The Appellant being dissatisfied with the judgment delivered on the 24th day of November 2022 by the Hon. B.A LUOVA (Adjudicator), in Machakos Small Claims Court SCCOMM No. E206 of 2022, appealed to this Honourable Court on the following grounds:- 2. That the learned trial magistrate erred in law and fact in finding the Respondent /Appellant wholly liable for the accident. 1. That the learned trial magistrate erred in law and in fact in failing to appreciate and consider the pleadings and the evidence adduced in support thereof. 2. That the learned trial magistrate erred in law and fact in failing to attach due weight to appellant's evidence and submissions and authorities attached to. 3. That the trial magistrate misdirected herself and based her findings on the wrong considerations. 4. That the learned magistrate erred in apportioning liability of 100% yet the respondent owed other road users road sense. 1. That the learned magistrate erred in law and fact in wholly disregarding or failing to accord proper consideration upon the defence witnesses in totality. 2. The learned trial magistrate erred in law and in fact in disregarding the respondent’s/appellant’s evidence in the face of clear circumstances of the occurrence of the accident. 3. The learned trial magistrate erred in law and in fact by making a determination that the claim was not statute barred. 4. That the learned trial magistrate erred in law and fact by not making a finding that the claim was filled out of time and this statute barred. 5. The learned trial magistrate erred in law and fact in failing to make a finding that the claimant greatly contributed to the accident, thereby failing to apportion liability, in light of the evidence before the court. Submissions by the Parties 1. The Appellant submitted that the accident occurred on 24th August, 2019 whereas the statement of claim was filed on 25th August, 2022. According to the Appellant, the claim was founded on tort and was therefore required to be filed within three years pursuant to section 4(2) of the Limitation of Actions Act. It was argued that no leave was sought or obtained before the claim was filed and that the learned Adjudicator erred in entertaining a time-barred claim. 2. On liability, the Appellant submitted that the learned Adjudicator relied heavily on the evidence of CW1, the police officer, who admitted in cross-examination that he was not an eye witness and that some of the information he relied upon came from bystanders. The Appellant submitted that where the evidence presented two competing possibilities as to how the accident occurred, the trial court ought to have apportioned liability. Reliance was placed on the decision in Kanyungu Njogu v Daniel Kimani Maingi [2000] eKLR on proof on a balance of probabilities. 3. The Respondent opposed the appeal. It submitted that the evidence before the trial court showed that motor vehicle registration number KCE 949M was driven in a zigzag manner, changed lanes without due care and hit the Respondent’s ambulance. The Respondent argued that its driver, CW2, was transporting a patient in an ambulance with sirens and strobe lights on, and that the Appellant’s driver was required by law to give way. 1. The Respondent further submitted that the Appellant’s witnesses were unreliable and inconsistent. In particular, RW1 and RW2 gave inconsistent accounts of the date and time of the accident, and RW2, who was the driver of KCE 949M, admitted that he left the scene and did not record a statement with the police. 2. On limitation, the Respondent submitted that on 24th August, 2022 the Judiciary’s e- filing and case tracking system was down. It relied on the Judiciary notice dated 24th August, 2022 indicating system downtime and argued that the claim had been prepared for filing on that date but could only be filed on 25th August, 2022 after the system issue was resolved. 3. The Respondent also relied on Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR) on the duty of a first appellate court to re-evaluate the evidence. Before the trial court, the Respondent relied on Octagon Private Investigation Security Services v Lion of Kenya Insurance Co. [1994] eKLR and African Merchant Assurance Company v Kenya Power & Lighting Company Limited [2019] eKLR on the doctrine of subrogation; Karisa and another v Solanki and another [1969] EA 318 on vicarious liability of a motor vehicle owner; and Total Kenya Ltd formerly Caltex Oil (K) Ltd v Janevams Ltd [2015] eKLR on proof of payment by invoices and vouchers. Jurisdiction and Duty of this Court 1. This is an appeal from the Small Claims Court. The jurisdiction of this Court is governed by section 38 of the Small Claims Court Act, which provides that a person aggrieved by the decision or order of the Small Claims Court may appeal to the High Court on matters of law, and that the decision of the High Court on such appeal is final. 2. Consequently, this Court is not exercising the ordinary jurisdiction of a first appellate court in the full sense contemplated in Selle & another v Associated Motor t/a Machira & Co Advocates [2013] KECA 208 (KLR). The jurisdiction is narrower and thus limited to matters of law. 3. However, a factual finding may raise a matter of law where it is shown that the trial court acted on no evidence, misapprehended the evidence, applied wrong principles, considered irrelevant matters, failed to consider relevant matters, or reached a conclusion that no reasonable tribunal properly directing itself could have reached. The Court of Appeal stated the principle in Ephantus Mwangi & Geoffrey Ngatia v Duncan Mwangi Wambugu [1984] eKLR, that an appellate court will not normally interfere with findings of fact unless they are based on no evidence, on a misapprehension of the evidence, or where the trial court is shown demonstrably to have acted on wrong principles. 4. The question whether a claim is statute-barred is plainly a question of law. It goes to jurisdiction and competence of the suit. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, the Court of Appeal held that jurisdiction is everything and that where a court has no jurisdiction it must down its tools. Similarly, the Supreme Court in Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] eKLR affirmed that a court’s jurisdiction flows from the Constitution or statute and cannot be assumed. 5. I shall therefore first address the issue of limitation. ISSUES FOR DETERMINATION 1. Having considered the record of appeal, the judgment appealed from, the parties’ submissions and the authorities cited, the issues that arise for determination are: 2. Whether the claim before the Small Claims Court was statute-barred; 3. Whether, if the claim was competent, the learned Adjudicator erred in law in finding the Appellant wholly liable; 4. Whether the award of special damages was supported by law and evidence. Whether the claim before the Small Claims Court was statute-barred 1. It is not disputed that the accident occurred on 24th August, 2019. The Respondent’s own statement of claim pleaded the same date. The police abstract produced as CEX1 also referred to the accident as having occurred on 24th August, 2019. CW2, the driver of the ambulance, confirmed in evidence that the accident occurred on 24th August, 2019 at about 0030 hours. 1. The statement of claim was filed on 25thAugust, 2022. The notice of first mention upon filing shows that the matter was filed on 25th August, 2022 at 3.36 p.m. 2. Section 4(2) of the Limitation of Actions Act provides as follows: “An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued.” 1. The Respondent’s claim was founded on negligence arising from a road traffic accident. It was therefore an action founded on tort. The cause of action accrued on 24th August, 2019, being the date of the accident. The three-year limitation period therefore expired on 24th August, 2022. 2. The claim having been filed on 25th August, 2022 was filed one day outside the limitation period. 3. The legal consequence of limitation is not merely procedural. It affects the jurisdiction of the court to entertain the claim. In Divecon Ltd v Samani [1995-1998] 1 EA 48, the Court of Appeal held that no court may extend time for filing suit outside the circumstances provided by statute. Similarly, in Mary Osundwa v Nzoia Sugar Company Limited [2002] eKLR, the Court of Appeal held that section 27 of the Limitation of Actions Act does not generally permit extension of time except in the limited circumstances expressly provided by the Act. 4. The Court of Appeal in Jones M. Musau & another v Kenya Hospital Association & another [2017] eKLR reiterated that actions founded on tort must be filed within three years from the date the cause of action accrued unless the plaintiff brings himself within the limited exceptions under the Limitation of Actions Act. 5. In Kenya Civil Aviation Authority v WK, MWK & WWK [2019] eKLR, the Court of Appeal stated that a plaint barred by statutory limitation is barred by law and that Article 159(2)(d) of the Constitution cannot be invoked to override a substantive statutory limitation period. 6. The Respondent’s answer to the plea of limitation was that the Judiciary e-filing system was down on 24th August, 2022. The Respondent relied on the Judiciary notice of 24th August, 2022. That notice stated that the Judiciary was experiencing downtime on the e- filing and case tracking system and that the technical team was working to restore the system. It further stated that, to ensure minimal service disruption, the Judiciary was reverting to the guidelines on manual operations during system downtime issued by the Chief Registrar of the Judiciary on 23rd December, 2020. For urgent applications and time- bound pleadings, parties were directed to forward the same through the respective court station email addresses and copy the automation deputy registrar. 1. The learned Adjudicator found that because of that notice, the claim was not statute- barred. 2. With respect, that conclusion cannot be sustained in law. The Judiciary notice did not extend statutory limitation periods. It did not suspend the operation of the Limitation of Actions Act. It merely provided an alternative mechanism for filing urgent and time-bound pleadings during system downtime. 3. A litigant who seeks to rely on that notice in answer to a statutory limitation objection must demonstrate that the time-bound pleading was in fact lodged through the alternative mechanism within time. In the present case, the Respondent did not produce evidence that the statement of claim was emailed to the Machakos Small Claims Court registry on 24th August, 2022. No email forwarding the claim to the station email address was produced. No acknowledgement by the registry was shown. No evidence of manual presentation or receipt on 24th August, 2022 was placed before the trial court. 4. The only filing evidence on record is that the claim was filed on 25th August, 2022. The Respondent’s explanation that the pleadings were ready for filing on 24th August, 2022 is not enough. Readiness to file is not filing. A claim is instituted when it is lodged in court in a manner recognized by law or by the court’s operational directions. 5. The Court is not unmindful that system downtime can occasion real inconvenience to litigants and advocates. However, statutory limitation is a substantive legal bar. In the absence of proof that the claim was lodged within the period allowed by law, the Court cannot deem a suit filed outside time to have been filed within time merely because a party intended to file it earlier. 6. Further, the claim herein was for material damage to property. Section 27 of the Limitation of Actions Act, which allows extension of time in limited circumstances, applies to actions for damages for negligence, nuisance or breach of duty where the damages claimed consist of or include damages in respect of personal injuries. The Respondent’s claim did not include personal injuries. It was a material damage claim. No statutory basis was shown upon which time could be enlarged. 1. I therefore find that the claim filed before the Small Claims Court on 25th August, 2022 was statute-barred under section 4(2) of the Limitation of Actions Act. The learned Adjudicator erred in law in holding otherwise. 2. That finding is sufficient to dispose of the appeal. However, because the parties addressed the Court extensively on liability and damages, and because those issues were determined by the learned Adjudicator, I will address them briefly for completeness. Liability 1. The Respondent called five witnesses before the Small Claims Court. 2. CW1 was Corporal Zephaniah Amday from Athi River Police Station. He produced the police abstract dated 26th August, 2019 as CEX1. His evidence was that the accident was reported under OB No. 24/24/8/2019. He stated that motor vehicle registration number KCE 949M was moving in a zigzag manner and knocked motor vehicle registration number KCK 443Y, which was travelling in the same direction. He further testified that after the impact, both vehicles landed in a ditch on the right side facing Nairobi direction. He stated that the driver of KCE 949M was not found at the scene and that KCE 949M was blamed for the accident. 3. In cross-examination, CW1 admitted that he was not an eye witness to the accident. He visited the scene after the accident had been reported. He also admitted that the allegation that the driver of KCE 949M was drunk was hearsay. However, he maintained that from the scene and the position of the vehicles, motor vehicle KCE 949M was to blame. 4. CW2 was Amos Kipkorir Langat, the driver of the Respondent’s ambulance. He adopted his witness statement. He testified that he was driving motor vehicle registration number KCK 443Y along Nairobi–Mombasa Road at Sabaki while transporting a patient to Nairobi Hospital. He stated that the ambulance’s siren and strobe lights were on. According to him, motor vehicle KCE 949M carelessly switched lanes and hit the ambulance on the left side. 5. CW3, Vitalis Masinde, was a legal officer with ICEA Lion General Insurance Company Limited. His evidence related principally to the insurance cover, the claim documentation and payment of the repair costs. He produced the policy schedule, repair invoice, payment vouchers, investigation report and investigator’s invoice. In cross-examination, he admitted that he was not at the scene and that the claim was filed one day after the lapse of three years. 1. CW4, Wilson Angatia, testified on behalf of the Respondent as its human resource manager. He confirmed that the Respondent owned motor vehicle registration number KCK 443Y and that the vehicle was insured by ICEA Lion General Insurance Company Limited. He produced the logbook and related ownership documents. 2. CW5, Peter Mzungu, was the motor vehicle assessor. He produced the assessment report, supplementary assessment report, re-inspection report and assessor’s fee note. He testified that the damage to the ambulance was consistent with the accident as pleaded, though he was not at the scene. 3. On the Appellant’s side, RW1, Paul Kimuyu, testified that he was a passenger in motor vehicle KCE 949M. He stated that the accident occurred on 23rd August, 2019 between 8.00 p.m. and 9.00 p.m. He blamed the ambulance for hitting their vehicle from behind. In cross-examination, he stated that after the accident he went to look for police officers but did not report the accident. 1. RW2, Peter Kimani, testified that he was the driver of KCE 949M. He also stated that the accident occurred on 23rd August, 2019 between 8.00 p.m. and 9.00 p.m. He blamed the ambulance. He admitted that he left the scene, did not report the accident immediately, and did not record a statement with the police. 2. RW3 was the Appellant, Rosemary Loice Nyakire Mugo. She confirmed that she was the owner of motor vehicle KCE 949M and that she had authorized her driver to use it. She was not at the scene. Her evidence on how the accident occurred was therefore not direct evidence. She blamed the ambulance and stated that the police investigations were one- sided. 3. The learned Adjudicator preferred the Respondent’s version. She found that the ambulance had its siren and strobe lights on and was transporting a patient. She relied on section 83 of the Traffic Act, as cited before her, which requires drivers to give way to an ambulance, police vehicle or fire engine indicating its approach by siren, bell or other warning device. She held that the Appellant’s driver was required to give way to the ambulance. 4. The question before this Court is not whether, sitting as a trial court, it would have arrived at the same factual conclusion. The question is whether the finding was based on no evidence, a misapprehension of the evidence, or wrong legal principle. 5. I find that there was evidence upon which the learned Adjudicator could find the Appellant liable. CW2 was an eye witness and gave a consistent account. CW1, though not an eye witness, produced the police abstract and testified on the report made and his observations after visiting the scene. The Appellant’s own driver admitted leaving the scene and failing to make an immediate police report. The Appellant’s witnesses also gave a date and time of accident that differed from the police abstract, the Respondent’s pleadings and CW2’s evidence. 6. I also take note of the decision in Karisa and another v Solanki and another [1969] EA 318, where the former Court of Appeal for East Africa held that where it is proved that a car has caused damage by negligence, then in the absence of evidence to the contrary, a presumption arises that it was driven by a person for whose negligence the owner is responsible. In this case, the Appellant admitted ownership of KCE 949M and further admitted that the vehicle was being driven with her authority. The finding of vicarious liability would therefore have been legally sustainable. 7. I also bear in mind the Court of Appeal decision in Kefa Omanyala Ingura v Ibrahim Omerikit Papai [2015] eKLR, where the Court emphasized that in road traffic accident claims, the court must evaluate the totality of the evidence and may apportion liability where both parties are shown to have contributed to the accident. However, apportionment is not automatic. It must be based on evidence of contributory negligence. 8. The Appellant’s position was that the ambulance hit KCE 949M from behind. That evidence was disputed. The learned Adjudicator had the advantage of hearing the witnesses and assessing their credibility. The contradictions in the Appellant’s evidence and the failure by RW2 to report the accident were matters the learned Adjudicator was entitled to consider. 9. Were the claim not barred by limitation, I would not have interfered with the finding on liability within the limited jurisdiction conferred by section 38 of the Small Claims Court Act. Subrogation 1. The Respondent pleaded that the claim was brought under the doctrine of subrogation on behalf of its insurer, ICEA Lion General Insurance Company Limited. This was supported by the evidence of CW3 and the insurance documents produced. 2. The law on subrogation is settled. In Octagon Private Investigation Security Services v Lion of Kenya Insurance Co. [1994] eKLR, the Court of Appeal held that subrogation does not create privity of contract between the insurer and a third party. The insurer may enforce the insured’s rights only in the name of the insured. The Supreme Court in African Merchant Assurance Company v Kenya Power & Lighting Company Limited [2019] eKLR affirmed that, under subrogation, an insurer that has indemnified the insured must ordinarily bring proceedings in the name of the insured, unless there has been a formal assignment of the right of action. 1. In the present case, the suit was brought in the name of Bristol Park Hospital Limited, the insured and owner of the damaged ambulance. The subrogation aspect would therefore not have rendered the claim incompetent. Special Damages 1. The Respondent pleaded special damages of Kshs. 471,675/= made up of repair costs of Kshs. 425,675/=, re-inspection fees of Kshs. 2,900/= and tracing fees of Kshs. 43,100/=. 2. The law is that special damages must be specifically pleaded and strictly proved. This principle was restated by the Court of Appeal in Hahn v Singh [1985] KLR 716 and has been consistently applied in later decisions including Jubilee Haulers Limited, Vipul Patel & another v Brian Muchiri Waihenya [2021] eKLR and Kenya Power & Lighting Company Limited v Ganjoni Towers Limited [2024] KECA 1803 (KLR). 3. The degree of proof required depends on the nature of the claim and the circumstances. In Mohammed Ali & another v Sagoo Radiators Limited [2013] eKLR, the Court of Appeal held that in material damage claims, an assessor’s report may, depending on the circumstances, provide sufficient proof of the cost required to restore the damaged item. 4. In this case, the Respondent produced an assessment report dated the 13th day of September, 2019, a supplementary assessment report, a repair invoice from Stantech Motors Limited for Kshs. 426,925.49, a payment voucher for Kshs. 425,675/=, a re- inspection report, an assessor’s fee note and payment voucher for Kshs. 2,900/=, and a satisfaction note. 5. The learned Adjudicator awarded Kshs. 425,675/= for repairs and Kshs. 2,900/= for re- inspection. She declined to award the tracing fees of Kshs. 43,100/= because only an invoice was produced and there was no proof of payment. In doing so, she relied on the reasoning in Total Kenya Ltd formerly Caltex Oil (K) Ltd v Janevams Ltd [2015] eKLR and Great Lakes Transport Co. (U) Ltd v Kenya Revenue Authority [2000] eKLR, that an invoice, unless endorsed as paid or supported by evidence of payment, is not necessarily proof of payment. 6. Had the claim been competent, I would have found no error of law in the learned Adjudicator’s treatment of special damages. DETERMINATION 1. The decisive issue remains limitation. The Respondent’s claim was filed outside the three-year limitation period prescribed by section 4(2) of the Limitation of Actions Act. The Judiciary system downtime notice did not extend limitation. It provided an alternative filing mechanism which the Respondent did not prove it utilized within time. 2. A court cannot confer jurisdiction upon itself in sympathy with a litigant who intended to file within time but did not do so. Limitation statutes serve an important public purpose. As was stated in Mehta v Shah [1965] EA 321, their object is to prevent stale claims and to protect defendants from being disturbed after evidence has been lost or circumstances have changed due to lapse of time. 3. Accordingly, I find that the learned Adjudicator erred in law in holding that the claim was not statute-barred. ORDERS 1. In the result, the appeal succeeds on the issue of limitation. I therefore make the following orders: 2. The appeal is hereby allowed. 3. The judgment and decree of the Small Claims Court at Machakos in SCCCOMM No. E206 of 2022, delivered on 24th November, 2022, are hereby set aside in their entirety. 4. The Respondent’s claim before the Small Claims Court is hereby struck out for being statute-barred under section 4(2) of the Limitation of Actions Act, Cap. 22 Laws of Kenya. 5. In the circumstances of this case, each party shall bear its own costs both before the Small Claims Court and in this appeal. READ AND DELIVERED THIS 16TH JULY 2026 IN THE PRESENCE OF. NO [ARTY PRESENT. BEFORE HON JOYCE MKAMBE GANDANI JUDGE OF THE HIGH COURT Court Assistant: BEN SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. LADY JUSTICE JOYCE MKAMBE GANDANI** Machakos High Court High Court Div Date: 2026-07-16 12:07:29