Joseph Wanyoike Kuria v Patrick Kinyanjui Mwangi

a) The learned adjudicator erred in law by finding that the appellant did not prove its case to the required standards. b) The learned trial magistrate erred in law in failing to award the appellant special damages which were specifically pleaded and proved. c) The learned trial magistrate erred in law and in fact in holding that the failure to plead particulars of negligence was fatal whereas particulars of damages had been pleaded and proved. 3. Parties disposed of the appeal by way of written submissions. The Appellant’s Submissions 4. The appellant submits that the appeal is both on quantum and liability whereby the trial court failed to import that the accident was reported and a police abstract issued and the appellant reported the same to his insurance company. Further, the court failed to award special damages yet the appellant pleaded and specifically proved the same. 5. The appellant further relies on the cases of Trust Bank Ltd vs Paramount Universal Bank Limited & 2 Others (2009) eKLR and Autar Singh Bahiza & Another vs Raju Govindji HCCC No. 548 of 1998 and HC. CIVIL APPEAL NO. E204 OF 2024 PAGE 2

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submits that the respondent failed to testify and thus his testimony remained uncontroverted. The Respondent’s Submissions. 6. The respondent refers to the case of Florence Rebecca Kalume vs Coastline Safaris & Another [1996] eKLR and submits that particulars of negligence must be proved before the trial court is called upon to find fault upon a defendant. The respondent argues that although the appellant alleged that the motor vehicle accident occurred as a result of the negligence on his part, the appellant did not list any particulars of negligence and neither did he prove the same. The respondent further refers to the cases of Ogwari vs Hersi [2023] KEHC 20111 (KLR) and Kimbio & Another vs Nyaribo t/a Nyaribo & Company Advocates [2024] KEHC 6120 (KLR) and argues that particularization of acts of negligence is mandatory and thus a claim without particulars of negligence was fatally defective and untenable in law. 7. Relying on the cases of Ndishu & Another vs Muriungi (Civil Appeal 3 of 2020) [2022] KEHC 2(KLR) (21 January 2022) (Judgment) and David Sironga Ole Tukai vs Francis arap Muge & 2 Others (2014) eKLR, the respondent submits that parties are bound by their pleadings and it is trite law that a party cannot be allowed to depart from his pleadings. HC. CIVIL APPEAL NO. E204 OF 2024 PAGE 3

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Issues for determination 8. The main issues for determination are:a) Whether failure to list particulars of negligence was fatal to the claim. b) If not, whether the respondent proved its case on a balance of probabilities. The Law 9. The Court of Appeal while referring to a second appeal, which is essentially on points of law and thus similar to the duty of this court under Section 38 of the Small Claims Court Act, set out the duty of the second appellate court in the case of Otieno, Ragot & Company Advocates vs National Bank of Kenya Limited [2020] eKLR 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 that they should have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. HC. CIVIL APPEAL NO. E204 OF 2024 PAGE 4

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10. In distinguishing between matters of law and fact the Court of Appeal stated in Kenya Breweries Ltd vs Godfrey Odoyo [2010] eKLR as follows:I have anxiously considered the pleadings, the evidence on record, the judgment of the learned Senior Resident Magistrate and the judgment of the superior court, the grounds of appeal, the submissions of the learned counsel as well as the authorities to which we were referred. First, this is a second appeal. In a first appeal the appellate court is by law enjoined to revisit the evidence that was before the trial court and analyse it, evaluate it and come to its own independent conclusion. In other words, a first appeal is by way of retrial and facts must be revisited and analysed a fresh. See Selle and Another vs Associated Motor Boat Company Limited and Others (1968) EA 123. In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two 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. Whether the appeal is defective. HC. CIVIL APPEAL NO. E204 OF 2024 PAGE 5

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11. Section 38 of the Act provides: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. 12. The Court of Appeal in Mwangi vs Wambugu [1984] KLR 453 commented of what amount to points of law as follows:A Court of Appeal will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principle in reaching the finding; and an appellate court is not bound to accept the trial Judge’s finding of fact if it appears either that he has clearly failed on some material point to take account of particular circumstances or probabilities material to an estimate of the evidence, or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally. 13. Similarly in Peter Gichuki King’ara vs Independent Electoral and Boundaries Commission & 2 Others [2014] eKLR the court held that:- HC. CIVIL APPEAL NO. E204 OF 2024 PAGE 6

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Bearing in mind the above principles, the most contentious issues in this appeal is whether the grounds of appeal are matters of law or facts. Having established that we have jurisdiction to determine only issues of law as per the provisions of Section 85A of the Elections Act, to us the whole 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 of course the usual caveat, that we did not see the witness demeanor is an issue of law. 14. I have perused the grounds 1-7 in the memorandum of appeal and note that the six (6) of them are on matters of facts save for ground which is on matters of law. The grounds on matters of fact will require this court to scrutinize and re-evaluate the evidence once more. 15. Ground 6 of the appeal touches on the failure to list the particulars of negligence which was said to have rendered the claim in the trial court fatally defective and untenable in law thus leading to the dismissal of the claim. It is trite law that negligence must be pleaded first before being proved. This principle was enunciated in the case of East Produce Kenya Limited vs Christopher Astiado Osiro in Civil Appeal No. 43 of 2001 where the court held:HC. CIVIL APPEAL NO. E204 OF 2024 PAGE 7

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It is trite law that the onus of proof is on he who alleges where negligence is alleged the position was well laid in the case of Kiema Mutuku vs 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. 16. The above quote is from a judgment in a civil case where Civil Procedure Rules are applicable and where the law requires that particulars of negligence be pleased and that strict rules of evidence be followed. The case we are dealing with in this appeal was filed under the Small Claims Act and it is important to examine what the Act says regarding procedure in cases filed in the Small Claims Courts. 17. This court must determine whether in a claim filed under the Small Claims Act requires to have particulars of negligence specifically pleaded. In order to determine this issue the court must examine the purpose for which these claims Act was established and the provisions dealing with procedure of the court 18. The Small Claims courts in Kenya were established to deal with civil disputes involving monetary claims up to Kenya HC. CIVIL APPEAL NO. E204 OF 2024 PAGE 8

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Shillings One Million (1,000,000) the courts are accessible, provides a simple procedure, affordable in resolving disputes. that is efficient and The jurisdiction of the court is provided for under Section 12 of the Act. The court deals with civil claims related to contracts, money held or received, torts involving property damage or personal injury, and sets offs or counter-claim. 19. The procedure of the court is designed to be simple, with emphasis on ensuring equality and fairness. Cases before the court ought to be concluded within sixty (60) days. Section 17 of the Act provides that the court have control of its own procedure in hearing and determining cases. In exercise of that control, the court shall have regard to the principles of natural justice. It is provided under Section 30 of the Act that parties can choose to be heard by way of filing documents and submissions. This provision simplifies the procedure even further. 20. Section 32 excludes the rules of evidence and the Civil Procedure Rules in hearing of cases. Section 24 of the Act provides for what should be included in the statement of claim and does not include the complex procedures of the Civil Procedure Act. As such, the claim shall be framed in a simple way for the opposite party to understand the claim and file a simple response. HC. CIVIL APPEAL NO. E204 OF 2024 PAGE 9

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21. Consequently, the procedure in the Small Claims Court is a simple one and the complex rules of evidence or the Civil Procedure Rules are not applicable. Expeditious disposal of cases is key to the establishment of cases in that court. It is, therefore, not necessary to plead particulars of negligence in a claim of personal injures or material damage claim. 22. In the case of Elrons Liited vs Basi (2024) eKLR was held that the simplified procedure in the Small Claims court was aimed at: “It could spell doom to the Small Claims Court, reducing it to just another Magistrates Court, or High Court for that matter, bound as they are, by the layers of complex procedure and rules of evidence.” 23. The adjudicator in this appeal found that failure to plead the particulars of negligence as fatal to the claimant’s case and that basis, held that the claim of KSh.176,500/= was not proved. The claim was worked as follows in the statement of claim dated 28th May 2024: Total cost of repair - KSh.102,500 Cost of assessment - KSh.5,000 Re-inspection fee KSh.3,000 - Tracing and investigation HC. CIVIL APPEAL NO. E204 OF 2024 KSh.32,000 PAGE 10

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Making it a sum of KSh.One Hundred and Forty-Two Thousand Five Hundred Only (KSh.142,500.00) 24. It is my considered view that the statement of claim as worded was sufficient to enable the respondent file a response. The adjudicator in my view, erred in dismissing the claim on grounds that it was not proved in that the particulars of negligence were not pleaded. 25. The adjudicator proceeded to assess damages she would have awarded had the claim been successful. The appellant produced documents to demonstrate the cost of repairs of KSh.103,820/= inspection and re-inspection cost of KSh.8,000/=, tracing and investigations KSh.32000/=, though PW2 testified that they were paid KSh.28,000/=. Less of income for 4 days was given KSh.14,000/=, legal fees and demand letter at a cost of all KSh.20,000 totaling to KSh.172,500/=. The court arrived at special damages payable to the appellant as KSh.176,500. It is clear from the documents produced that the claim was proved. 26. I find this appeal merited and allow it in the following terms: a) That the judgment of the Adjudicator dismissing the claim is hereby set aside and substituted with judgment in favour of the appellant for special damages of KSh.172,500/=. HC. CIVIL APPEAL NO. E204 OF 2024 PAGE 11

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b) The appellant shall have the costs of the suit in the court below and of this appeal. 27. It is hereby so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 26TH DAY OF JUNE 2025. F. MUCHEMI JUDGE HC. CIVIL APPEAL NO. E204 OF 2024 PAGE 12

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