In Ogwari v Hersi (Civil Appeal 223 of 2022) (2023) KEHC 2011 the High Court in Mombasa was confronted with an appeal from the Small Claims Court whose subject matter was a claim over personal injuries arising out of a road accident. High Court Judge, Justice Kizito Magare, delved into an analysis of the jurisdiction and procedures of the Small Claims Court with a view of making much-needed clarification on the jurisdiction of the Small Claims Court with respect to Personal Injury matters based on the tort of negligence.
Justice Kizito referring to the claim as ‘terse’ found fault with the manner and form in which the claim was filed, particularly that though the claim was founded on the tort of negligence, it provided no particulars of negligence.
Brief on Small Claims Court
The Small Claims Court was established in 2016, designated as a specialized commercial court with a duty to dispense justice in civil and commercial disputes that do not exceed Ksh 1,000,000. Among other reasons, the Small Claims Court was established to enable timely disposal of disputes while insisting on strict rules of procedure and evidence.
Section 12 of the Small Claims Act (‘the Act’) prescribes the jurisdiction of the Court in the following terms:
12. Nature of claims and pecuniary jurisdiction
(1) Subject to this Act, the Rules and any other law, the Court has jurisdiction to determine any civil claim relating to-
- a contract for sale and supply of goods or services;
- a contract relating to money held and received;
- liability in tort in respect of loss or damage caused to any property or for the delivery or recovery of movable property
Further, Section 23 of the Act dictates the form of a claim that is to be lodged with the court. It states that every claim shall commence with the filing of a Statement of Claim in the prescribed form signed or authenticated by the claimant or authorized representative.
It is against this background that Justice Kizito called into question the aptness of filing a claim for personal injury where negligence is pleaded. The judge opined that the nature of the form used in the Small Claims Court does not give room for the pleading of the particulars of negligence. The Judge remarked that the form used in this court is rather constrained and to rely on such a form for a negligence claim would have the effect of creating a monger of strict liability and negligence which is untenable.
As the law currently stands, for negligence to be established, one must prove three essentials: a duty of care; a breach of this duty of care; and damage resulting from the breach of duty. According to the judge, this is not contemplated in the template Small Claims Court form. To further advance his argument, the judge held strict the principle that “he who alleges must prove’. To this end, the Court relied on the case of East Produce Kenya Limited v Christopher Astiado Osiro in Civil Appeal No. 43/01 which stated as follows:
“It is trite law that the onus of proof is on he who alleges and in matters where negligence is alleged … 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”
Further, the Court placed reliance on the case of John Richard Okuku Oloo vs South Nyanza Sugar Co Ltd (2013) eKLR where the court observed as follows:
“…a claim for special damages must indeed be specifically pleaded and proved with a degree of certainty and particularity but we must add that, the degree and certainty must necessarily depend on the circumstances and the nature of the act complained of. “
A personal injury claim based on negligence requires that particulars of the negligence be pleaded and that the same be proven. To achieve this, the court would be required to have a thorough review of medical evidence, including having a second medical examination. Further, in the opinion of the judge, to fully prepare and defend such a claim, the 60-day window given to the court for dispute resolution would be insufficient. The judge thus contended that a claim based on negligence does fit within the framework of the Small Claims Court whose purpose is to resolve fairly straight forward matters.
Additionally, the court observed that whilst material claims are already quantified, a claim based on negligence which results in personal injury is an unquantified claim. With material claims, a court proceeds to strict proof since the court is confronted with special damages that must be strictly proved. To the contrary, general damages are at large and cannot be quantified in advance. The court is mandated to do its best in reaching an award that reflects the nature and gravity of the injuries. With personal injury claims, a court relies on the evidence on record and the general circumstances of the case, to come up with an award. The Judge held that personal injury claims based on the tort of negligence are claims at large and as such, the same cannot be filed at the Small Claims court. The court found that the Plaintiff in this particular case had indicated a fictitious figure of 700,000 for purposes of fitting in the Small Claims Court. According to the judge, claims that require damages to be assessed do not therefore fit within the framework of the Small Claims Court.
The court also considered the notices that need to be served after filing a personal injury claim arising out of an accident under Insurance (Motor Vehicles Third Party Risks) Act, Cap 405. He found that such strict procedural requirements could not be accommodated within the Small Claims Court.
CONCLUSION
Based on the foregoing, Kizito J held that it is impractical to file personal injury claims based on negligence in the Small Claims Court and held that the same should be filed with the Magistrates Court at the first instance. It is however important to note that personal injury for assault and allied causes may still be filed. The bar is against matters whose cause of action lies in negligence and requires such particulars to be pleaded and proven.
This High Court judgment is controversial not least because of its implication on the working of the Small Claims Court, including the matters it had already dealt with. Even at present(in practice), the Small Claims Courts continue adjudicating over personal injury claims arising out of the tort of negligence, in spite of the High Court judgment. There may be need for further clarity from the superior courts on this issue.
