More often than not, when you get into a road traffic accident, and you sustain injuries, you need urgent medical attention. Yet reports indicate that nearly 50% of Kenyans do not have a form of medical insurance, largely because premiums are beyond reach. For many accident victims, compensation is the only realistic way to fund treatment, rehabilitation and recovery.
With the establishment of the Small Claims Court, Kenyans saw a new dawn. Section 12(1)(d) of the Small Claims Court Act(the “Act”) expressly gave the Court jurisdiction to handle personal injury claims, promising resolution within sixty days, simplified procedures and no strict requirement for legal representation. Within a short time, thousands of personal injury matters arising from road traffic accidents (RTAs) were filed and determined, with awards capped at the Court’s pecuniary limit of Kenya Shillings One Million (Kes. 1,000,000).
That apparent success, however, triggered a fundamental constitutional question. Can a court designed for “small and relatively simple” monetary disputes fairly and lawfully handle complex negligence claims anchored in detailed evidence, expert reports and insurance legislation? That is the question the High Court confronted in Gathaiya v Attorney General & 2 Others; & 176 Interested Parties (Constitutional Petitions E008 & E010 of 2024 (Consolidated) KEHC 290 (KLR))
THE PETITIONS
Petition E008 of 2024 was filed by a claimant in Eldoret SCCC No. E1026 of 2023. This claimant approached the High Court seeking declarations that the Small Claims Court has proper jurisdiction to entertain personal injury claims under Section 12(1)(d) of the Act and Rule 5(3) of the Small Claims Court Rules. The claimant (now Petitioner) argued that Parliament deliberately donated that jurisdiction, that the Court’s procedures were designed to be flexible, and that thousands of litigants had already relied on this framework to seek compensation for RTA injuries.
Petition E010 of 2024 was brought by a respondent in Eldoret SCCOM No. E247 of 2023, who challenged the constitutionality of Rule 25(1) of the Small Claims Court Rules to the extent that it imported Civil Procedure Rules on arrest and committal to civil jail. He contended that the Small Claims Court Act does not authorize committal to civil jail as a mode of execution, and that his arrest and detention over a civil debt breached his right to liberty under Article 29 of the Constitution.
The 176 Interested Parties were litigants in various RTA personal injury claims pending before the Small Claims Court in Eldoret, who argued that such matters are inherently complex negligence actions requiring full pleadings, strict evidence, expert testimony and meaningful appellate oversight. Collectively, the petitions raised a critical tension between the promise of swift, affordable justice and the constitutional imperative of a fair hearing.
PERSONAL INJURY IN RTAs: TOO COMPLEX TO BE DEEMED SMALL AND SIMPLE CLAIMS
At the heart of the judgment is the High Court’s treatment of RTA matters as classic negligence claims. The bench emphasized that claims for compensation for personal injuries in RTAs are rooted in the tort of negligence, which under Kenyan common law requires proof of duty of care, breach, causation and resulting damage. Litigation in this area necessarily grapples with issues such as foreseeability, contributory negligence, occupant and occupier’s liability, and doctrines like res ipsa loquitur.
In the Court’s view, such cases demand an intricate adjudicatory process from formal notices, pre-trial discovery, full disclosure of documents and viva voce evidence, to cross‑examination of expert witnesses and careful evaluation of conflicting testimony. Compressing this process into a 60‑day statutory timeframe, under a procedure that relaxes strict rules of evidence and limits appeals to points of law only, risks undermining the right to a fair hearing guaranteed by Article 50 of the Constitution of Kenya,2010.
The judges therefore held that a claim for compensation for personal injuries in RTAs cannot qualify as a small and simple claim within the meaning and purpose of the Small Claims Court Act. The Court concluded that Parliament’s intent in Section 12(1)(d) was not to transform the Small Claims Court into a forum for complex personal injury litigation, but to facilitate expeditious resolution of straightforward monetary disputes.
THE INSURANCE DIMENSION: WHY THE MOTOR VEHICLE THIRD PARTY RISKS ACT MATTERS
The judgment pays particular attention to the interaction between the Small Claims Court Act and the Insurance (Motor Vehicle Third Party Risks) (Amendment) Act, 2013. Sections 3A and 3B of that statute give insurers two crucial procedural rights in RTA claims:
- The right to request that a claimant undergo a second medical examination by a certified medical practitioner before judgment or settlement is paid.
- The right to obtain or verify information from institutions that issued documents relied upon in the claim, with a statutory window of up to one month for verification.
When these provisions are juxtaposed with Section 34(1) of the Small Claims Court Act (which requires claims to be concluded within 60 days), Section 32 of the Small Claims Court Act (which excludes strict application of the Evidence Act), and Rule 23(3) of the Small Claims Court Rules (which allows reliance on expert reports without calling their makers), it becomes clear that the Small Claims framework is structurally ill‑suited to meet the demands of RTA litigation.
The Court found that forcing RTA personal injury claims into this compressed, informal procedure would effectively strip insurers of their statutory rights under Sections 3A and 3B of the Insurance (Motor Vehicle Third Party Risks) (Amendment) Act, and expose litigants to truncated fact‑finding. That outcome, the judges reasoned, would be inconsistent with the fair hearing guarantees in Article 50 and could not be assumed to have been Parliament’s intention in the absence of explicit language such as “notwithstanding any other law” in Section 12 of the Small Claims Court Act.
THE HOLDING: RTA PERSONAL INJURY CLAIMS OUT, RULE 25 PARTLY STRUCK DOWN
After analyzing the issues before it, the High Court made a landmark finding.
It declared that claims for personal injuries arising out of road traffic accidents are excluded from Section 12(1)(d) of the Small Claims Court Act. Accordingly, the Small Claims Court has no jurisdiction to entertain such claims, and pending matters of that nature must be channeled to the appropriate Magistrates’ Courts with full civil procedure safeguards.
TO CLAIMANTS, INSURERS AND THE COURTS
The immediate implication of the judgment is clear and is already happening!
Accident victims who had turned to the Small Claims Court for swift relief must now litigate in ordinary Magistrates’ Courts. For many, this feels like a lost shortcut. Cases will likely take longer than 60 days, and legal representation now becomes more necessary.
Yet the decision also restores important safeguards. Claimants will have space to present full medical evidence, call experts, respond to insurer challenges and benefit from a multi‑tier appellate process where both factual and legal errors can be corrected. Insurers, for their part, can properly exercise their statutory rights to second medical examinations and document verification, reducing the risk of fraudulent or inflated claims.
For the judiciary, the ruling re‑aligns the Small Claims Court with its original design. It is a forum for small, straightforward claims with simplified procedures and tight timelines, not a catch‑all court for complex personal injury litigation.
OUR TAKE
Speed matters, but so does substance.
For thousands of Kenyans who saw the Small Claims Court as a lifeline after road accidents, this judgment undeniably feels like a setback. Many had pinned their hopes on quick awards to fund treatment and re‑build their lives. Now, they face a slower, more demanding process.
But the High Court’s decision is also a sober reminder that access to justice is not just about how fast a case ends, it is about how fairly it is heard. Negligence claims that turn on medical evidence, liability disputes and statutory insurance rights cannot be compressed into a framework built for simple debt claims without risking miscarriages of justice.
At WAREN Law Advocates LLP, we see this development as an opportunity to reset expectations and strategy. Accident victims, insurers and practitioners alike must now:
- Reassess where and how to file RTA personal injury claims;
- Anticipate longer timelines, but also deeper scrutiny and more informed judgments;
- Place constitutionally fair hearing rights at the center of litigation planning.