Njeru v Chege & 2 others [2023] KEHC 23759 (KLR)

Njeru v Chege & 2 others (Civil Appeal E365 of 2022) [2023] KEHC 23759 (KLR) (Civ) (19 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23759 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E365 of 2022

DAS Majanja, J

October 19, 2023

Between

Joseph Mukere Njeru

Appellant

and

Paul Njihia Chege

1st Respondent

Rose Waigwe Ndungu

2nd Respondent

James Kiarie Kihiu

3rd Respondent

(Being an appeal from the Judgment and Decree of Hon. D. S. Aswani, Adjudicator/RM dated 6th May 2022 at the Nairobi, Small Claims Court at Milimani in SCCC No. E024 of 2022)

Judgment

1. By the judgment dated May 5, 2022, the Small Claims Court dismissed the Appellant’s claim on the ground that it violated section 14 of the Small Claims Court Act (“the SCA”) which provides as follows:14. Prohibition on division of claims No claim shall be divided or pursued in parts for the sole purpose of bringing the sum claimed in each of such proceedings within the jurisdiction of the Court.

2. When the claim was filed before the Small Claims Court, the Respondent filed a notice of motion dated February 10, 2022 seeking an order that, “The honourable court be pleased to dismiss the instant suit for being a duplicate of Nairobi SCCC No. E769 of 2021, Joseph Mukere Njeru v Paul Njihia Chege, Rose Waigwe Ndungu and James Kiarie Kihiu and an abuse of the process.” The application was premised on the ground that suit involved the same parties and the same cause of action and was based on the same road traffic accident that occurred on 08. 03. 2021 along Kiambu Road involving motor vehicle registration KBB 286 R.

3. When the matter came up for mention on February 24, 2022, counsel for the Respondent informed the Court it wished to withdraw the application. The counsel for the Appellant did not object to the application and the court marked the application as withdrawn. In due course, parties agreed on apportionment of liability in the ratio of 80: 20 in favour of the Appellant against the Respondent. The parties also agreed to adopt the Appellant’s documents as evidence as well as to file written submissions.

4. Upon consideration of the material on record, the Adjudicator struck out the claim as both claims arose out of the same cause of action and that the claim violated section 14 of the SCA in order allow the claim before the court fit within the court’s jurisdiction. It is the finding that has precipitated this Appeal.

5. Although the Appellant raises 8 grounds of Appeal in the memorandum of appeal dated June 2, 2022, he has condensed the grounds to two. First, whether the Court ought to have entertained the objection raised by the Respondents in their submissions and second, whether the Court erred in concluding that a material damage claim or personal injury claim ought to be combined.

6. I have considered the Appellant’s submissions alongside the pleadings and I take the following view of the matter. Section 14 of the SCA is clear in its import. It contemplates that only one claim can be filed in the Court and it prohibits the splitting of a claims or cause of action in order to bring parts of the claim within the jurisdiction of the Small Claims Court. An accident is a single cause of action under which the claim for damages may include injury to the body, material damage or any other loss. A claimant, by reasons of section 14 is prohibited from lodging separate claims for different aspect of the case hence the trial magistrate was correct to hold that the Appellant could not file two claims relating to the same cause of action. In such a case, the Appellant has a duty to elect which case it intends to proceed with.

7. In the proceedings before the Adjudicator, the Respondent had withdrawn its objection to the suit and the parties had recorded a consent on liability. It was therefore improper for the Adjudicator to proceed do strike out the suit on the basis of section 14 without giving the party the right to elect which case he seeks to pursue.

8. In the circumstances, I allow the Appeal and order as follows:1. The matter shall be placed before the small claims Court for purpose of proceeding with assessment of damages.2. The appellant shall formally elect by way of filing an affidavit withdrawing the other case namely; Milimani SCC Case No. E769 of 2021. 3.There shall be no order as to costs.

DATED and DELIVERED at NAIROBI this 19th day of OCTOBER 2023. D. S. MAJANJAJUDGE