A not so recent decision of the High Court sitting at Mombasa rendered by Justice DKN Magare on 3rd July 2023 in Ogwari v Hersi (Civil Appeal 223 of 2022) [2023] KEHC 20111 (KLR) has caused a stir among Small Claims Courts’ users and practitioners and undeniably tossed the running down practice space into a state of confusion. Among the Honourable Judge’s findings were, firstly, that a “claim for personal injury for accident cases, in view of the notices to be served after filing under Cap 405 and the particulars of negligence which must be proved in common law, is singularly unsuited for the small claims court” and, secondly, that “a claim that has no monetary value, that is a claim at large, where damages have to be assessed is not a small claim.” This determination has had extensive impact being that a sizeable portion of claims before Small Claims Courts across the country constitute personal injury claims arising from road traffic accidents. Consequently, many respondents have raised preliminary objections and, thus, there is utter uncertainty over the eventuality of already filed matters. The most logical and least disruptive proposal would be for the already filed matters to proceed to their conclusion but no more running down claims can be filed going forward.
The question that then comes to mind is, did the Honourable Judge get it right? In allowing the appeal before him, he relied on the grounds noted above, that is, the complexity and strict proof required in running down cases founded in negligence as well as a claim for damages at large not qualifying as a small claim. Additionally, the Learned Judge was critical, rightly so, of the deficient pleadings arising from the failure to plead and prove the particulars of negligence. However, it is the stripping of the Small Claims Courts’ jurisdiction to hear and determine personal injury claims arising from running down cases that is rather problematic.
Firstly, as rightly noted by the Honourable Judge, the general rule in assessing damages is that comparable injuries are, as far as possible, compensated by comparable awards, noting that no two cases are exactly the same. It necessarily follows that, by relying on precedent, it is possible for a claimant to estimate the potential damages payable based on the nature of the injury suffered. Hence, where a reasonable approximation establishes that payable damages are within the pecuniary jurisdiction of the Small Claims Court, there should be no reason why such a claim cannot be heard and determined by the said court.
Secondly, and quite instructive, on filing a claim before the Small Claims Court, every statement of claim typically contains a declaration that the claimant voluntarily waives any claim above the Small Claims Court’s pecuniary jurisdiction. In as much as general damages are damages at large, the one million Kenya shillings jurisdictional threshold coupled with the claimant’s voluntary waiver of any claim above the said amount means that a Small Claims Court is empowered to award general damages up to that specified limit. Hence, it can be argued that there were no lacunae, thereby casting aspersions on the necessity of the Learned Judge’s finding.
Thirdly, the Honourable Judge alluded to the notices required under the Insurance (Motor Vehicle Third Party Risks) Act as well as the need for a second medical examination as other reasons why the Small Claims Court is unsuited to handle personal injury claims associated with road traffic accidents. However, in response, some practitioners have raised the concern that the Learned Judge failed to take into consideration those instances where the parties to a claim are willing and able to undertake and comply with all the requisite motions within the stipulated sixty-day window within which a Small Claims Court is supposed to have rendered its decision in a matter. In any event, none of the notices required under the Insurance (Motor Vehicle Third Party Risks) Act go beyond the said sixty days. For example, the notice to the insurer under Section 10(2) is required to be lodged before or within thirty days of the commencement of a claim and the one under Section 10(4) within fourteen days of the commencement of proceedings.
Based on the above my humble opinion is that the Honourable Judge did not get it right. It can be argued that, notwithstanding the plain, literal, and clear dictates of Section 12(1)(d) of the Small Claims Court Act, he seemingly misinterpreted the said provision and, consequently, usurped the role of the legislature by amending its scope which, read together with Section 12(3), is undoubtedly unambiguous. The decision can also be impugned as an unjustifiable and unnecessary fetter to every Kenyan’s right to access to justice as guaranteed under Article 48 of the Constitution of Kenya. This situation is compounded further by the fact that the High Court is the last appellate court from decisions from the Small Claims Court so there is no chance that the Court of Appeal, let alone the Supreme Court, will ever get to clarify this situation.
The jurisdictional challenges brought forth by the above stated decision are, unfortunately, not the only ones plaguing the Small Claims Court Act. Around the same time Justice Kizito Magara’s decision captured people’s attention, I stumbled upon a claim “relating to liability in tort in respect of loss or damage caused to any property …” under Section 12(1)(c) of the Small Claims Act. Interestingly, the property that is the subject matter of the claim is the claimant’s dwelling house, with the alleged cause of the damage being purported activities on the adjacent land owned by the respondent. It is imperative to note that, under Article 260 of the Constitution of Kenya as well as Section 3(1) of the Interpretation and General Provisions Act, ‘property’ is defined to include “any vested or contingent right to, or interest in or arising from, among others, land, or permanent fixtures on, or improvements to, land.” Therefore, the subject matter of the claim being land, permanent fixtures, and improvements to land, raises questions on whether the Small Claims Court is the appropriate forum to litigate on questions relating to loss or damage.
This concern is borne of, firstly, the fact that a plain and literal reading of Section 12(1)(c) establishes that the Small Claims Court is undoubtedly endowed with jurisdiction to hear and determine tortious claims relating to loss or damage to ANY property. The use of the word ‘any’ essentially means that the court can entertain claims for loss or damage to immovable property, including land, permanent fixtures, and improvements on land. This proposition is bolstered by, firstly, that the immediately succeeding provision making specific reference to movable property is separated by the conjunction “or” and, secondly, Section 13(5) is explicit that a Small Claims Court cannot entertain a claim “if the cause of action is founded … upon a dispute over a title to or possession of land …”. Hence, a consideration of the totality of these provisions seemingly establishes that, subject to its pecuniary threshold, a Small Claims Court can hear and determine claims for loss or damage to land or permanent fixtures and/or improvements to land.
However, the possibility of Small Claims Court’s jurisdiction in respect of claims for loss or damage to land or permanent fixtures and/or improvements to land becomes problematic upon considering the potential for an appeal against the resulting judgement. Section 38(1) of the enabling legislation is categorical that appeals against the decision of a Small Claims Court lie to the High Court. However, in a claim involving loss or damage to land or permanent fixtures and/or improvements to land, would an appeal properly lie to the High Court in light of the corresponding jurisdiction bestowed upon the Environment and Land Court by Article 165(5)(b) as read with Article 162(2)(b) of the Constitution of Kenya and the Environment and Land Court Act (ELC Act)? For the avoidance of doubt, Section 13(2) of the Environment and Land Court Act extends the court’s jurisdiction to, among others, disputes “relating to environmental planning and protection, …, land use planning, …, and any other disputes relating to environment and land.”
In light of the above, it necessarily follows that the High Court cannot hear, let alone determine, a matter that is clearly within the remit of the ELC. However, being that there is no provision for appeals from the Small Claims Court to the ELC, would that mean that an appellant in such a claim would have no recourse, or would it be proper for the High Court to transfer such an appeal to the ELC, particularly in light of Section 13(4) of the Environment and Land Court Act that grants the ELC appellate jurisdiction over the decisions of subordinate courts in respect of matters falling within its jurisdiction? The only potential mechanism known to this author that would accomplish such an eventuality would be a transfer from the High Court to the ELC by consent of the parties. Beyond that, we can only speculate. Thus, from where I stand, legislative review and reform seems to be the only way to eliminate and rectify these uncertainties.
In light of the above, it necessarily follows that the High Court cannot hear, let alone determine, a matter that is clearly within the remit of the ELC. However, being that there is no provision for appeals from the Small Claims Court to the ELC, would that mean that an appellant in such a claim would have no recourse, or would it be proper for the High Court to transfer such an appeal to the ELC, particularly in light of Section 13(4) of the Environment and Land Court Act that grants the ELC appellate jurisdiction over the decisions of subordinate courts in respect of matters falling within its jurisdiction? The only potential mechanism known to this author that would accomplish such an eventuality would be a transfer from the High Court to the ELC by consent of the parties. Beyond that, we can only speculate. Thus, from where I stand, legislative review and reform seems to be the only way to eliminate and rectify these uncertainties.