https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8543

Okombo v Wambui (Small Claims Appeal E006 of 2025) [2026] KEHC 8543 (KLR) (Civ) (29 May 2026) (Judgment) Neutral citation: [2026] KEHC 8543 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Small Claims Appeal E006 of 2025 AC Mrima, J May 29, 2026 Between Stephen Adongo Okombo Appellant and Irene Njoki Wambui Respondent (Being an appeal from the Judgment of Hon. J. Asiago (Adjudicator/RM) delivered on 19th December 2024 in Small Claims Civil Case No. E4908 of 2024) Judgment Background: 1.Stephen Adongo Okombo, the Appellant herein, instituted Nairobi [Milimani] Small Claims Civil Suit No. E4908 of 2024 (hereinafter referred to as ‘the suit’) against the Respondent, Irene Njoki Wambui. She sought compensation of Kshs. 500,000/= for damages arising from a motor vehicle accident that occurred on 30th June 2024 between her vehicle, registration No. KCN 246C, and the Respondent’s vehicle, registration No. KDE 184F. 2.The Respondent denied liability, disputed the occurrence of the accident and pleaded contributory negligence on the part of the Appellant. By consent of the parties recorded on 9th December 2024, the matter proceeded via a documents-only approach pursuant to Section 30 of the Small Claims Court Act. 3.In a judgment delivered on 19th December 2024, the Learned Magistrate, struck out the suit, finding it fatally defective for failure to specifically plead the particulars of negligence. 4.It was that decision that attracted the instant appeal, which was vehemently opposed. The appeal was heard by way of written submissions, hence, this judgment. The Appeal: 5.The Appellant filed a Memorandum of Appeal dated 8th April 2025 and preferred the following grounds of appeal: -1.That the trial court erred in law in striking out the Appellants’ claim for failure of listing the particulars of negligence yet the same had been made out and pleaded in the pleadings.2.That the trial Magistrate erred in law in striking out the Appellants’ suit based on complex rules of procedure and evidence yet the matter proceeded under Section 30 of the Small Claims Court Act No. 10A.3.That the trial Magistrate erred in law in allowing for a documents-only approach to the litigation but expected to find material on record which would only come by oral evidence yet the material on record was sufficient and adequate. The Submissions: 6.In his submissions dated 3rd November 2025, the Appellant submitted that the trial court erred in fact and law by striking out the claim for failure to list particulars of negligence. The Appellant argued that the particulars were sufficiently pleaded at paragraph 4(a) of the Statement of Claim. The Appellant drew support from the case of Kanya -vs- Africa PVC Industries Limited [2025] KEHC 14240 (KLR), to contend that the Small Claims Court is bereft of strict detail and technicalities, and that the trial Court ought to have derived the particulars of negligence from reading the plain statements within the claim. 7.The Appellant further submitted that the trial Court improperly applied complex rules of procedure and evidence. Relying on Ondimu -vs- Keragori [2025] KEHC 15086 (KLR), he argued that by proceeding under Section 30 of the Small Claims Court Act, the documentary evidence on record was sufficient and adequate to prove the case on a balance of probabilities without the need for oral evidence. 8.The Appellant then prayed that the appeal be allowed as prayed. The Respondents’ case: 9.Irene Njoki Wambui opposed the appeal through written submissions dated 30th October 2025. It was her case that as a first appellate Court, it is the primary duty of this Court, as was held in Selle & Another -vs- Associated Motor Boat Co. Ltd & Others [1968] EA 123 to review the evidence adduced in the lower Court and satisfy itself that the decision was well-founded. The Respondent maintained that the trial Court was correct in striking out the suit because negligence must be specifically pleaded and strictly proved. To that end, she referred to the decision in East Produce Kenya Limited -vs- Christopher Atiado Osiro Civil Appeal No. 43 of 2001. 10.In the alternative, the Respondent proposed that should liability be found, it ought to be equally apportioned since the police abstract indicated the investigation was pending and no driver was charged. 11.On quantum, the Respondent argued that special damages must be strictly proved. It was her case that the Appellant only proved damages amounting to Kshs. 25,273/= based on the specific receipts provided in the record. Analysis and Determination: 12.Based on the record, and the parties’ submissions, the sole issue for determination is whether the trial Adjudicator erred in law in striking out the Appellant’s suit for failure to formulate a specific list of particulars of negligence. The jurisdiction of the High Court in appeals emanating from the Small Claims Court is circumscribed by Section 38 of the Small Claims Court Act to matters of law and that such appeals are final. 13.Whereas there has been no universally accepted definition of the term ‘matters of law’, there has been some working definitions thereto. The term ‘point of law’ may also be referred to as ‘matter of law’. The Black’s Law Dictionary defines ‘a matter of fact’ and ‘a matter of law’ as follows: -Matter of fact: A matter involving a judicial inquiry into the truth of alleged facts and Matter of law: A matter involving a judicial inquiry into the applicable law. 14.Lord Denning, J in Bracegirdle vs. Oxley (2) [1947] 1 ALL E.R. 126 at p 130 in espousing the two terms had the following to say: -…. The question whether a determination by a tribunal is a determination in point of fact or in point of law frequently occurs. On such a question there is one distinction that must always be kept in mind, namely, the distinction between primary facts and conclusions from those facts. 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, and that is the case here. The conclusion drawn by these justices from the primary facts, was not one that could reasonably be drawn from them. 15.Drawing from the above, the Court of Appeal in Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others [2014] eKLR sated as under: -…. That reasoning has been adopted in this jurisdiction. In A.G. Vs. DAVID MURAKARU [1960] EA 484, for instance, Chief Justice Ronald Sinclair sitting with Rudd J. adverted to the factual foundations of legal questions by stating that an appellate court restricted to determining questions of law may yet quite properly interfere with the conclusion of a lower court if the same is erroneous in point of law. This is the case where that lower court arrives at a conclusion on the primary facts that it could not reasonably come to. Such a conclusion or decision becomes an error in point of law. See also PATEL vs. UGANDA [1966] EA 311 and SHAH Vs. AGUTO [1970] EA 263. 16.Earlier, the Court of Appeal in M’riungu and Others -vs- R [1982-88] 1 KAR 360 observed thus: -…. 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 of 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. 17.Later, the Court of Appeal in Charles Kipkoech Leting -vs- Express (K) Ltd & another [2018] eKLR discussed what entails matters of laws as the Court considered its role as a second appellate Court. It observed thus;…. Our mandate is as has been enunciated in a long line of cases decided by the Court. See Maina -vs- Mugiria [1983] KLR 78, Kenya Breweries Ltd v Godfrey Odongo, Civil Appeal No. 127 of 2007, and Stanley N. Muriithi & another v Bernard Munene Ithiga [2016] eKLR, for the holdings inter alia that, on a second appeal, the Court confines itself to 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….. 18.And, in Peter Gichuki King'ara vs. IEBC & 2 others, Nyeri Civil Appeal No. 31 of 2013, Court of Appeal held that a decision challenged on the basis of wrongful exercise of discretion raises a point of law. [See also Twaher Abdulkarim Mohamed v Independent Electoral and Boundaries Commission (IEBC) & 2 others, (2014) eKLR]. 19.From the foregoing, an appeal on matters of law calls upon the appellate Court to steer clear of findings of fact derived from primary evidence and to also restrain itself from treating findings of fact as holdings of law or mixed findings of fact and law unless the findings are so perverse as to defeat the object of justice. 20.In discharging its appellate role in matters from the Small Claims Court, the High Court should remain alive to the rationale behind the establishment of the Small Claims Court as a special and unique Court which is different from the mainstream civil Courts. It must always be remembered that the focal point of the Small Claims Courts is expeditious disposal of cases and that is why the Court is not bound by the strict rules of evidence [Section 32 of the Small Claims Court Act] and further the Court has power to control of its own procedure in determining any claim before it subject to regard to the principles of natural justice [Section 17 of the Act]. The High Court, therefore, is duty-bound to assist the Small Claims Court realize it’s said objective and it ought to consider appeals from the said Court through those special lenses in view of the various decisions referred to above. 21.Having said so, since the instant appeal calls upon this Court to ascertain whether the trial Court properly exercised its discretion in striking the suit, then that is a matter of law. This Court is, hence, properly seized of this appeal. 22.Turning to the power of the Small Claims Court to strike out a suit, it is imperative to note that the Small Claims Courts are unique Courts which are exclusively regulated by a distinct legal regime being the Small Claims Act, Cap. 10A of the Laws of Kenya and the Small Claims Rules, 2019. As such, unless there is an express provision allowing the invocation of any other legislation in the Small Claims Act or the Rules made thereunder, reference to any other law is legally impermissible. 23.Unlike the Civil Procedure Act and the Rules thereunder which specifically provide for striking out of suits, the Small Claims Act and the Rules thereto makes no provision for such. To this Court, that omission was intentional since the Small Claims Court, unlike the other contemporary Courts, leans towards an inquisitorial mode of dispute resolution as opposed to an adversarial one. Further, the said intention is clearly and variously demonstrated throughout the Act and the Rules, and is in line with Article 159[2][d] of the Constitution. 24.The above rationale was affirmed inGathaiya v Attorney General & 2 others; & 176 Interested Parties (Petition E008 & E010 of 2024 (Consolidated)) [2026] KEHC 290 (KLR) (22 January 2026) (Judgment) where an expanded bench of this Court had the following to say: -… It is clear that the Act did not expressly provide for arrest and committal to civil jail as a mode of execution. Arrest and committal to jail is not a mode of execution provided under Section 37(1) of the Act. That was incorporated by Rule 25(1) by way of reference. We are alive to the fact that the Act has not specifically expressed an intention to limit the right to liberty by providing for arrest and committal to jail as a mode of execution of a money decree. The only limitation in our view is, as submitted by the Petitioner, in cases of the offence of contempt of Court under Section 47 (2) and (3) of the Act. In its detailed provisions, it is proof that the primary objective of the Court is compensation through recovery, flexibility and settlement, not the immediate enforcement of a penal measure. 25.The Court also stated as follows: -… It is trite that when the language used in a statute is plain and unambiguous, it is not permissible for the Court to go outside the four corners of the provision to seek the meaning thereof….. 26.Therefore, to the extent that the Small Claims Act and the Rules do not give power to the Small Court to strike out pleadings, a Small Court cannot arrogate itself with such jurisdiction. In this matter, the trial Court, with utmost respect, wrongfully read into the Small Claims Court Act and the Rules the provisions of the Civil Procedure Act and the Rules on striking out pleadings. 27.The Supreme Court in In the Matter of Interim Independent Electoral Commission [2011] eKLR, Constitutional Application No. 2 of 2011 held that jurisdiction of Courts in Kenya is regulated by the Constitution, statute, and principles laid out in judicial precedent. The Supreme Court at paragraph 30 of its decision held in part as follows:…a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of Legislation is clear and there is no ambiguity. 28.In Samuel Kamau Macharia and Another v. Kenya Commercial Bank Limited & 2 others [2012] eKLR, the Supreme Court reiterated its holding on a Court’s jurisdiction as follows: -… A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law. 29.Drawing from the foregoing, the trial Court, hence, erred in law in exercising a jurisdiction in striking out the suit, which jurisdiction was not conferred upon it in law. 30.Having so held, this Court further states that even if the Court had the requisite jurisdiction to strike out the suit, still the circumstances in this matter would not favour the striking out of that suit. I say so because paragraph 4[a] of the Statement of Claim plainly and sufficiently set out the manner in which the Respondent wrongfully managed her vehicle thereby causing the accident. To this Court, the Claim particularized the actions on the part of the Respondent that constituted negligence. For certainty, the said paragraph 4[a] of the Claim states as follows: -the Respondent … controlled, managed and drove motor vehicle registration number KDE 184F recklessly, carelessly and negligently that the vehicle veered off its lane into the claimant’s rightful lane hitting claimant’s motor vehicle. 31.In sum, the appeal is merited. Disposition: 32.In the end, the following final orders hereby issue: -(a)The Judgment in Milimani SCC Case No. E4908 of 2024 delivered on 19th December 2024 is hereby set aside in its entirety.(b)The Appellant’s suit in Milimani SCC Case No. E4908 of 2024 is hereby reinstated.(c)The Court file is hereby remitted back to the Small Claims Court at Milimani with directions that it be placed before a Magistrate other than Hon. J. Asiago, to be heard and determined on a priority basis.(d)The Appellant is awarded the costs of this appeal.Orders accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 29TH DAY OF MAY, 2026.A.C. MRIMAJUDGEJudgment virtually delivered in the presence of:Ms Maina, Learned Counsel for the Appellant.Ms Abok, Learned Counsel for the Respondent.Michael/Amina – Court Assistants.