Odongo v Nunda (Civil Appeal E055 of 2025) [2026] KEHC 11154 (KLR) (7 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **CIVIL APPEAL CASE NO. E055 OF 2025** **VICTOR OTIENO ODONGO...................................................................... APPELLANT** **VERSUS** **ELMAND NUNDA….................................................................................. RESPONDENT** **JUDGMENT** 1. This appeal arises from the decision by Hon. G.C Serem adjudicator in SCCOMM E493 of 2024. In that case the respondent was awarded Kshs. 300,000/= as compensation for injuries sustained in a road traffic accident said to have occurred on 16/08/2024. The impugned decision was delivered on 26/2/2025. 2. In its judgment the trial court adopted a consent on liability at 100%. It then after analyzing submission assessed quantum of general damages at Kshs. 300,000/=. 3. In the memorandum of appeal, the appellant listed one grounds of appeal that: - 4. The learned magistrate erred in law by making an award of general damages where no prayer or relief for general damages was sought in the respondent’s pleadings. 5. He then proceeded to ask that the appeal be allowed, the award on general damages be set aside and the suit be dismissed with costs. 6. On 12/3/2026 directions were taken for parties for file and exchange submissions. When the case was mentioned before me on 19/5/2026 only the appellant had complied. The respondent though served did not attend court. No submissions have been filed on his behalf. 7. The appellant submitted that parties are bound by their pleadings. That all the respondent sought from court was judgment in the sum of Kshs. 700,000/=. That this was not a prayer for general damages. He referred the court to the case of ***Lamba versus National Social Security Fund & another (2023) KECA 123 (KLR)*** where the Court of Appeal held that: ‘it is a cardinal principle of law that a court will only grant reliefs sought by a party… where a court has proceeded to grant a relief not contained in prayers in the pleadings or not regularly sought by a party expressly and by implication appellate courts have had no hesitation in annulling or overturning orders granting such reliefs.’ 1. The appellant also referred to the case of Elizabeth O. Odhiambo versus South Nyanza Sugar Company Limited (2019) eKLR where the court stated: ‘***A decision given on a claim or defence not pleaded amounts to a determination made without having the parties heard and leads to denial of justice***.’ **ANALYSIS AND DETERMINATION** 1. I have considered the pleadings, record of appeal, trial courts judgment and the appellant’s submission. The issues for determination are: - 2. Whether the appeal falls within Section 38 (i) of the Small Claims Court Act. 3. Whether the trial court granted awards outside the scope of pleadings. 4. The jurisdiction of the High Court to entertain appeals from the Small Claims Court is limited to matters of law under Section 38 of the Act. The appeal is final. 5. As to what constitutes ‘matters of law and points of law I take recourse in the Black’s Law Dictionary which defines a matter of fact and a matter of law as follows’: - ‘Matter of facts; 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.’ 1. In trying to explain how the two matter are dealt with an appeal, the court of appeal ***M’ Riungu and others versus Republic (1982-88) KAR 360*** observed ‘…….we would agree with the views expressed in the English case of ***Martin versus Glyneed Distributors Limited T/A MBS Fastenings (1983) CR 511*** that where a right of appeal is confirmed to customs of land only an appellate court has duty to accept the findings of fact of the lower court and result the temptation to that findings of facts as holdings of law and mixed findings of facts 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 could be the same as holding the decision is bad law.’ 1. Further, in the case of ***Charles Kipkoech Letting versus Express (K) Limited*** and another described its role as follows ‘…….our mandate is as has been enunciated in a long line of cases decided by the Court of Appeal **(see Maina versus Mugiria (1983) KLR 78.** Kenya Breweries Limited versus Godfrey Odongo Civil Appeal No. 127 of 2007 and Stanley N. Muriithi and another versus Bernard Munene Ithinga (2016) eKLR 0for the holdings inter alia that on the second appeal the court confines itself to make 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...’ 1. In the instant case where the court is being asked to ascertain whether the trial court properly handled the issue of pleadings then this is clearly a matter of law. It falls within section 38 of the Small Claims Act. 2. As to whether the court erred in awarding general damages where the respondent has pleaded for Kshs. 700,000/= it is important for High Court to remain faithful to the raison d’etre behind the establishment of Small Claims Court. It is a special court set apart from the mainstream court untethered by strict rules of evidence as provided under Section 32 of the Act. The High Court as it determines appeals it is duty bound to help the Small Claims Court achieve its objective of expeditious disposal of cases which is a result of simplified proceedings. 3. With this in mind I now consider the complaint by the appellant on the strict adherence to the four corners of pleadings viewed against the special lenses of procedure in the Small Claims Court. 4. One of the features of this court is use of prescribed forms. The claims are limited to One Million Shillings. 5. In the case before me both parties were represented by advocates. They agree on liability. It was a road traffic accident claim. The claim lists injuries sustained. The statement by the claimant talks of damages and costs. 6. I find the observation of the court in Elizabeth O. Odhiambo vs South Nyanza Sugar company limited (2019) eKLR useful. The question is whether the appellant was confused and misled by the pleadings. Can it be said with any honesty that the appellant in the claim for compensation for injuries in a road traffic case he thought Kshs. 700,000/= referred to special damages? My answer is in the negative. It cannot be said that the appellant was not heard on the issues and was denied justice. Both sides knew what each other’s case was. 7. In the result I find the appellant’s ground of appeal to be an exercise in raising technicalities above the substance and simplicity desired in Small Claims Court. In my interpretation of Section 17 and 32 of the Act agreeing with the appellant will defeat the objective of the Small Claims Court. In the result the appeal is without merit. It is hereby dismissed. 8. . In conclusion the appellant having not challenged the quantum as assessed by the adjudicator the same stands. The judgment of the trial court on liability and damages remain undisturbed. 9. The respondent is the successful party. He gets the costs of the suit. The same to be borne by the appellant. It is so ordered. Ms. Omuga for the appellant Respondent absent. Mr. Gitonga – Court Assistant **DELIVERED, DATED AND SIGNED AT MAKADARA THIS 7th July. 2026.** **HON. ALEX. K. ITHUKU** **JUDGE** Judgment delivered through Microsoft Teams online platform. **HON. ALEX. K. ITHUKU** **JUDGE**