(Being an appeal against the judgment and decree of Hon. C. A. Okumu, Adjudicator, delivered on 15th December 2023 in Milimani Small Claims Court SCCCOMM. CLAIM NO. E3405 of 2023)
1. This appeal arises from a judgment of the Small Claims Court (SCC) dated 15th December 2023 in which the court allowed the 1st respondent’s claim for recovery of KShs 470,000/= as money mistakenly deposited into the appellant’s account No. 55......11 at the 2nd respondent bank by the 1st respondent’s client Jabali Christian Schools. The 1st respondent was the claimant before the SCC, the appellant was the respondent while the 2nd respondent herein was joined to the proceedings as an Interested Party.
2. The case proceeded by way of the pleadings and witness statements filed by the parties under section 30 of the Small Claims Court Act (Cap. 10A) Laws of Kenya which provides that:
S. 30. Subject to agreement of all parties to the proceedings, the Court may determine any claim and give such orders as it considers fit and just on the basis of documents and written submissions, statements or other submissions presented to the Court.
3. The 1st respondent’s case presented through her amended statement of claim dated 14th August 2023, witness statement of the same date and documents as per the list of documents of the same date was that sometime in August 2022 she entered into a contract with Jabali Christian Schools to provide for them logistical arrangements for travel and accommodation for an excursion for learners and teachers from Nairobi to Mombasa and back at a cost of KShs 954,832/=.
4. The 1st respondent sought and received quotations for the service from various suppliers, among them the appellant herein Alfajiri Car Rental Limited and Richmond General Supplies and Services Limited. She eventually chose Richmond to provide the services to Jabali Christian Schools with an understanding that Jabali would make payment directly to Richmond where after Richmond would pay the 1st respondent her commission.
5. For some reason Jabali Christian Schools paid some KShs 470,000/= into the account of the appellant in two instalments of KShs 300,000/= and KShs 170,000/=. The appellant and its bank the 2nd respondent were requested to accept a reversal of the sums deposited but never did so thus prompting the claim before the SCC. The 1st respondent averred that it was requested by Jabali to pursue the matter on its behalf.
6. In its response dated 29th May 2023 to the claim, the appellant was brief, it pleaded that the claim did not disclose any cause of action in contract or negligence against the appellant and that it was a stranger to the 1st respondent.
7. In the witness statement dated 22nd May 2023, the appellant through Frankline Otieno Okeyo its general manager of the 1st respondent herein denied that the claimant a customer or service provider for the company. He averred that 1st respondent having blamed her accountant for presenting the wrong account in the transaction her recourse lay in tort law against the said employee. He averred further that there was no nexus between the 1st respondent and the appellant company and no cause of action either in tort or contract against the company. He averred further that the appellant company holds account No. 5545530011 with NCBA. However, the said account was inactive and had been dormant for several years and whatever balances that were in the account had been transferred to the Unclaimed Financial Assets Authority (UFAA). That the company had no intention of re-activating the said account.
8. Further that the company had never received any demand or request for reversal as alleged by the 1st respondent, Jabali School, or NCBA bank and the e-mail extract allegedly requesting reversal was addressed to NCBA Bank and not to the appellant company. That according to the extract e-mail extract, the same was not delivered to the intended recipient. That if the facts as outlined by the 1st respondent were accurate, then it was within the bank’s authority to reverse the alleged transfer.
9. The appellant therefore prayed that the claim against it be dismissed.
10. The 2nd respondent, NCBA Bank Kenya Plc, was enjoined to the proceedings before the SCC as an Interested Party. It made a response to the claim through a replying affidavit sworn on 11th September 2023 by Christine Wahome, its Senior Legal Counsel.
11. The 2nd respondent deposed that the appellant maintained an account No. 5545530011 with it at its Parklands branch. It deposed further that of the sum of KShs 470,000/= deposited into the account by Jabali Christian Schools, the same had been withdrawn leaving a balance of KShs 177,262.80 as at 23rd August 2023.
12. The 2nd respondent produced a statement of the said account for the appellant showing that indeed Jabali Christian Schools had respectively deposited KShs 300,000/= and KShs 170,000/= into the account on 1st December 2022 and 5th December 2022.
13. Upon analyzing the evidence, the learned Adjudicator concluded that considering the various documents filed by the parties, she was satisfied that KShs 170,000/= and KShs 300,000/= were deposited to account No. 5545530011 in the name of Alfajiri Car Rental as claimed by the 1st respondent and so the claim had been proved and she allowed the same with interest and costs.
14. The appellant was dissatisfied with the judgment and in the memorandum of appeal dated 15th January 2024 it has raised the following grounds that:
a) the learned trial magistrate erred in law and in fact in reaching a decision that was not supported by evidence produced by the parties, in particular that:
i. making a finding that there was a cause of action between the 1st respondent and the appellant.
ii. Imposing civil liability upon the appellant where the 1st respondent had admitted negligence on her part.
iii. Making a finding that the 1st respondent was entitled to judgment as sought in the amended statement of claim.
b) the learned trial magistrate erred in fact and in law by failing to consider the real issues raised by the parties in their pleadings and their submissions and solely relied on the statement of claim to make her decision.
c) the learned magistrate erred in law by misapplying the law on evidence and evidential burden in civil proceedings to reach an erroneous decision.
15. The appellant therefore prays that the judgment issued on 15th December 2023 be set aside and varied in terms that the 1st respondent’s claim before the SCC be dismissed with costs to the appellant and the appellant be awarded costs of the appeal. That the court may make any further order that it may think just and fair in the circumstances of the case.
16. The appeal was disposed of by way of written submissions filed by learned counsels for the appellant and 1st respondent. The same are considered in the analysis that follows. The 2nd respondent did not participate in the appeal.
17. I have considered the grounds set out in the Memorandum of Appeal and the submissions by learned counsels for the parties.
18. The appellant reduced its grounds of appeal to be its issues for determination. The 1st respondent raised one issue, that is whether the 1st respondent had a cause of action against the appellant.
19. As a preliminary issue for guidance to learned counsel for the appellant he may wish to recall that the SCC is presided over by an Adjudicator and not a magistrate. It is important to bear in mind some of the seemingly little but very vital provisions of the SCCA in order to appreciate the spirit behind the creation of this very distinguished court because, otherwise it gets meshed up with the operations of the magistrates’ courts and there it loses meaning as a different court. In the Kenyan context, an Adjudicator is indeed a magistrate, with full legal training and an admitted advocate of the High Court. However, while presiding over the SCC she removes the robes of a magistrate and wears the ordinary garment of an Adjudicator who in the spirit of the SCCA should come down to the level of the ordinary person on the streets. The reasons are that, unlike the magistrate’s court the SCC is designed to be simple, that is, without the strictures of formal procedure and strict evidentiary rules, fast and accessible. These reasons will come out clearer in the analysis and evaluation of the evidence that follows because the operations of the SCC must be distinguished from those of the magistrate’s court.
20. First, an appeal to this court from the SCC is on points of law only as provided for under section 38 of the SCC Act. So, the first issue for this court to consider is whether the grounds of appeal raised by the appellant are on points of law only. Therefore, the submission by learned counsel for the appellant that thisg court has to analyze and reassess the evidence on record and reach its own findings as held in the case of Selle vs Associated Motor Boat Company (1969) E.A 123) is misplaced. From the provisions of the Act, it follows that this court cannot proceed with the case by way of a rehearing and re-evaluation of evidence as is the norm in other civil matters as required under section 78(2) of the Civil Procedure Act and Rules.
21. Learned counsel for the appellant would do well to refer and be guided by the Court of Appeal’s observation in the case of Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR) that:
“Those points in an appeal of the kind before us, being from an election court’s decision, are further circumscribed by Section 85A of the Elections Act which limits appeals to the Court of Appeal to matters of law only. It is therefore quite strange and improper that each of the seventeen grounds, without exception, commences with a standard expression “the judge erred in fact and law” or “the learned Judge erred in law and in fact.” Clearly the drafters of the memorandum did not have the legal provision in active contemplation. Had they done so, they would have found that by invoking factual errors, they were inviting jurisdictional objections to their entire appeal.”
22. Further exposition on this issue of an appeal based on points of law only is found in the case of M’Riungu v. Republic [1983] KLR 455, where the Court of Appeal stated thus:
“where a right of appeal is confined to question of law, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of fact and law and it should not interfere with the decision of the trial court or the first appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law”.
23. Going by these decisions, this court proceeds on the basis of the facts as determined by the court of original jurisdiction in the case, the SCC.
24. I agree with the 1st respondent’s submissions that the issue of the locus standi of the 1st respondent to institute the proceedings against the appellant was not raised in the court below and in the grounds of appeal herein. It has only been raised in the submission and so the same does not arise for determination.
25. In any case, the 1st respondent was the one who was dealing with all the parties and knew all the issues that would have raised a cause of action against the appellant. Other than the averment in the witness statement that the 1st respondent was a stranger to it, there was no plea that she lacked the standing to bring the action against the appellant. It is apparent from the facts of the case that the 1st respondent was an agent of a disclosed principal, Jabali Christian Schools, who paid the money into the appellant’s bank account. She said that Jabali Christian Schools gave her the authority to pursue the claim on their behalf in which she had an interest for payment of her commission.
26. The appellant’s argument is that it had no contractual relationship with the 1st respondent and so no cause of action could arise between them. It has relied the case of Auto Garage v Motokov E. (1971) E.A. 519 where SPRY V.P. stated thus:
“I would summarize the position as I see it by saying that if a plaint shows that the Plaintiff enjoyed a right, that the right has been violated and that the Defendant is liable, then, in my opinion, a cause of action has been disclosed and any omission or defect may be put right by amendment. If, on the other hand, any of those essentials is missing, no cause of action has been shown and no amendment is permissible. I think this accords with the words I have quoted from Law, J., in lake Motors’ case with which I respectively agree “
27. It further cited the cases of Cotecna Inspection S.A v Hems Group Trading Company Limited [2007] KECA 354 (KLR) and Kenya Women Finance Trust v Bernard Oyugi Jaoko & 2 others [2018] KEHC 4933 (KLR) for the position that there must be established a nexus between the parties, whether contractual tortious for a cause of action to arise between them.
28. The 1st respondent on its part, citing the Black’s Law Dictionary 9th edition at pp. 251 and the cases of Letang vs. Cooper [1964] 2 All ER 929 at 934, Attorney General & another v Andrew Maina Githinji & another [2016] KECA 817 (KLR) on the definition of a cause of action submits that the 1st respondent had a cause of action against the appellant for money had by the appellant by mistake and on account of unjust enrichment.
29. She further submits that money paid under a mistake is recoverable. She relied on the cases of Onjallah v Kenya Commercial Bank Ltd [2004] KECA 146 (KLR) and Standard Bank Ltd v John Henry Akello [1979] KECA 14 (KLR).
30. She also submits that a cause of action lies against the appellant on account of a cause of action in the nature of unjust enrichment or restitution which is different from contract or tort and he is bound to refund the money paid into its account. That the court will order restitution of the money where the justice of the case demands that the money should be refunded. She relies on the case of Chase International Investment Corporation and Another v Laxman Keshra and 3 others [1978] KECA 7 (KLR) where several authorities on the subject are discussed.
31. Having said that, it is important to bear in mind that the SCC Act exempts the court’s proceedings from the rigid application of the standards of evidence applicable in other court proceedings and permits the court to include as evidence any material that it deems credible or trustworthy (emphasis by underlining supplied). It follows from this provision that it is largely upon the Adjudicator to determine the material to rely upon for as long as it is credible and trustworthy. Section 32 of the Act provides that the strict evidentiary rules applicable in other courts are not wholly applied in the Small Claims Court. It further, provides that the Court may admit as evidence any oral or written testimony, record, or other material even though the same is not admissible as evidence in any other Court under the law of evidence (emphasis by underlining supplied). This means the Adjudicator has the discretion to admit any evidence which may be helpful in establishing whether or not the claim is proved.
32. In the present case, there is undisputed documentary material provided by the 1st respondent and the IP showing that the money was indeed deposited into the appellant’s account held with the 2nd respondent. There was evidence by the 1st respondent and which is not disputed by the appellant that the money ought not to have been deposited into that account by Jabali Christian Schools. Such evidence being placed before the ordinary person, what would he or she decide? Would he or she leave it to the appellant to keep? The answer is an obvious no!
33. It is true that the money was mistakenly deposited into the appellant’s account. It is not disputed that there was no transaction between the appellant and Jabali Christian Schools in which the money was paid to the appellant. The contention by the appellant that the 1st respondent or Jabali Christian Schools for that matter had itself to blame for being negligent does not hold good at all. It was liable to return the money to the respondent and the money was in law recoverable from the appellant as money deposited by mistake (see the case of Delphis Bank Limited v Caneland Limited [2014] KECA 202 (KLR). The appellant was therefore obliged to refund the money to Jabali Christian Schools through the 1st respondent as its agent.
34. My thinking is that considering the provisions of section 17 of the SCC Act, the responsibility of this court when considering an appeal from the SCC is to consider the legality and reasonableness of the decision of the learned Adjudicator. If this court is satisfied that the law was properly considered and applied and a reasonable evaluation of the facts had, then it will not interfere with the findings and determination of the court. The converse would also be true. That where the law was not properly considered and/or applied or where the decision does not seem reasonable from the facts before the court, then this court will interfere. Given the provisions of the SCC Act excluding to a large extent the strict provisions of the law of evidence and the technicalities of procedure under the CPR, I would find that the standard of reasonableness would be that of ordinary man on the street.
35. What the learned Adjudicator needed only to determine was whether in her estimation, having adhered to the rules of natural justice, the documents and the statements of witnesses produced supported the claim or not. In the light of the evidence therein I am satisfied that the learned Adjudicator proceeded correctly in arriving at her finding that the appellant was liable to refund the money paid into its account with the 2nd respondent. The appellant was clearly liable and could not successfully resist the claim through defences that were not tenable in law. It cannot be allowed to keep the money as that would amount to unjust enrichment.
36. A reasonable person looking at the facts as presented herein should find that money had been paid into the appellant’s account by mistake and the appellant had no reason to retain it. Instead, as per the evidence of the 2nd respondent, the appellant went ahead to apply a substantial part of the money to its own use when it very well knew where it had come from and could refund it. So that even a request to the 2nd appellant to reverse the money to the account of Jabali Christian Schools would be of no effect.
37. I am satisfied and I find that the learned Adjudicator proceeded correctly to determine the claim before her and arrived at the correct decision.
38. Consequently, I find that the appeal has no merit and the same is dismissed with costs for both this appeal and before the SCC being awarded to the 1st respondent.
39. Orders accordingly.
40. Delivered, dated and signed on the Virtual Platform, Teams this 16th day of February 2026 and uploaded on the CTS for access by parties.
ANDAYI W. F.
JUDGE
In the presence of:
N/A for the Appellant.
Counsel from the Appellant’s firm Gichuki Kimere & Co. Adv. appeared at some point when the court was sitting but did not appear afterwards for the delivery of judgment.
Wambui (Ms) h/b for Nduati for the 1st Respondent.
Ummu: Court Assistant.
1. This appeal arises from a judgment of the Small Claims Court (SCC) dated 15th December 2023 in which the court allowed the 1st respondent’s claim for recovery of KShs 470,000/= as money mistakenly deposited into the appellant’s account No. 55......11 at the 2nd respondent bank by the 1st respondent’s client Jabali Christian Schools. The 1st respondent was the claimant before the SCC, the appellant was the respondent while the 2nd respondent herein was joined to the proceedings as an Interested Party.
2. The case proceeded by way of the pleadings and witness statements filed by the parties under section 30 of the Small Claims Court Act (Cap. 10A) Laws of Kenya which provides that:
S. 30. Subject to agreement of all parties to the proceedings, the Court may determine any claim and give such orders as it considers fit and just on the basis of documents and written submissions, statements or other submissions presented to the Court.
3. The 1st respondent’s case presented through her amended statement of claim dated 14th August 2023, witness statement of the same date and documents as per the list of documents of the same date was that sometime in August 2022 she entered into a contract with Jabali Christian Schools to provide for them logistical arrangements for travel and accommodation for an excursion for learners and teachers from Nairobi to Mombasa and back at a cost of KShs 954,832/=.
4. The 1st respondent sought and received quotations for the service from various suppliers, among them the appellant herein Alfajiri Car Rental Limited and Richmond General Supplies and Services Limited. She eventually chose Richmond to provide the services to Jabali Christian Schools with an understanding that Jabali would make payment directly to Richmond where after Richmond would pay the 1st respondent her commission.
5. For some reason Jabali Christian Schools paid some KShs 470,000/= into the account of the appellant in two instalments of KShs 300,000/= and KShs 170,000/=. The appellant and its bank the 2nd respondent were requested to accept a reversal of the sums deposited but never did so thus prompting the claim before the SCC. The 1st respondent averred that it was requested by Jabali to pursue the matter on its behalf.
6. In its response dated 29th May 2023 to the claim, the appellant was brief, it pleaded that the claim did not disclose any cause of action in contract or negligence against the appellant and that it was a stranger to the 1st respondent.
7. In the witness statement dated 22nd May 2023, the appellant through Frankline Otieno Okeyo its general manager of the 1st respondent herein denied that the claimant a customer or service provider for the company. He averred that 1st respondent having blamed her accountant for presenting the wrong account in the transaction her recourse lay in tort law against the said employee. He averred further that there was no nexus between the 1st respondent and the appellant company and no cause of action either in tort or contract against the company. He averred further that the appellant company holds account No. 5545530011 with NCBA. However, the said account was inactive and had been dormant for several years and whatever balances that were in the account had been transferred to the Unclaimed Financial Assets Authority (UFAA). That the company had no intention of re-activating the said account.
8. Further that the company had never received any demand or request for reversal as alleged by the 1st respondent, Jabali School, or NCBA bank and the e-mail extract allegedly requesting reversal was addressed to NCBA Bank and not to the appellant company. That according to the extract e-mail extract, the same was not delivered to the intended recipient. That if the facts as outlined by the 1st respondent were accurate, then it was within the bank’s authority to reverse the alleged transfer.
9. The appellant therefore prayed that the claim against it be dismissed.
10. The 2nd respondent, NCBA Bank Kenya Plc, was enjoined to the proceedings before the SCC as an Interested Party. It made a response to the claim through a replying affidavit sworn on 11th September 2023 by Christine Wahome, its Senior Legal Counsel.
11. The 2nd respondent deposed that the appellant maintained an account No. 5545530011 with it at its Parklands branch. It deposed further that of the sum of KShs 470,000/= deposited into the account by Jabali Christian Schools, the same had been withdrawn leaving a balance of KShs 177,262.80 as at 23rd August 2023.
12. The 2nd respondent produced a statement of the said account for the appellant showing that indeed Jabali Christian Schools had respectively deposited KShs 300,000/= and KShs 170,000/= into the account on 1st December 2022 and 5th December 2022.
13. Upon analyzing the evidence, the learned Adjudicator concluded that considering the various documents filed by the parties, she was satisfied that KShs 170,000/= and KShs 300,000/= were deposited to account No. 5545530011 in the name of Alfajiri Car Rental as claimed by the 1st respondent and so the claim had been proved and she allowed the same with interest and costs.
14. The appellant was dissatisfied with the judgment and in the memorandum of appeal dated 15th January 2024 it has raised the following grounds that:
a) the learned trial magistrate erred in law and in fact in reaching a decision that was not supported by evidence produced by the parties, in particular that:
i. making a finding that there was a cause of action between the 1st respondent and the appellant.
ii. Imposing civil liability upon the appellant where the 1st respondent had admitted negligence on her part.
iii. Making a finding that the 1st respondent was entitled to judgment as sought in the amended statement of claim.
b) the learned trial magistrate erred in fact and in law by failing to consider the real issues raised by the parties in their pleadings and their submissions and solely relied on the statement of claim to make her decision.
c) the learned magistrate erred in law by misapplying the law on evidence and evidential burden in civil proceedings to reach an erroneous decision.
15. The appellant therefore prays that the judgment issued on 15th December 2023 be set aside and varied in terms that the 1st respondent’s claim before the SCC be dismissed with costs to the appellant and the appellant be awarded costs of the appeal. That the court may make any further order that it may think just and fair in the circumstances of the case.
16. The appeal was disposed of by way of written submissions filed by learned counsels for the appellant and 1st respondent. The same are considered in the analysis that follows. The 2nd respondent did not participate in the appeal.
17. I have considered the grounds set out in the Memorandum of Appeal and the submissions by learned counsels for the parties.
18. The appellant reduced its grounds of appeal to be its issues for determination. The 1st respondent raised one issue, that is whether the 1st respondent had a cause of action against the appellant.
19. As a preliminary issue for guidance to learned counsel for the appellant he may wish to recall that the SCC is presided over by an Adjudicator and not a magistrate. It is important to bear in mind some of the seemingly little but very vital provisions of the SCCA in order to appreciate the spirit behind the creation of this very distinguished court because, otherwise it gets meshed up with the operations of the magistrates’ courts and there it loses meaning as a different court. In the Kenyan context, an Adjudicator is indeed a magistrate, with full legal training and an admitted advocate of the High Court. However, while presiding over the SCC she removes the robes of a magistrate and wears the ordinary garment of an Adjudicator who in the spirit of the SCCA should come down to the level of the ordinary person on the streets. The reasons are that, unlike the magistrate’s court the SCC is designed to be simple, that is, without the strictures of formal procedure and strict evidentiary rules, fast and accessible. These reasons will come out clearer in the analysis and evaluation of the evidence that follows because the operations of the SCC must be distinguished from those of the magistrate’s court.
20. First, an appeal to this court from the SCC is on points of law only as provided for under section 38 of the SCC Act. So, the first issue for this court to consider is whether the grounds of appeal raised by the appellant are on points of law only. Therefore, the submission by learned counsel for the appellant that thisg court has to analyze and reassess the evidence on record and reach its own findings as held in the case of Selle vs Associated Motor Boat Company (1969) E.A 123) is misplaced. From the provisions of the Act, it follows that this court cannot proceed with the case by way of a rehearing and re-evaluation of evidence as is the norm in other civil matters as required under section 78(2) of the Civil Procedure Act and Rules.
21. Learned counsel for the appellant would do well to refer and be guided by the Court of Appeal’s observation in the case of Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR) that:
“Those points in an appeal of the kind before us, being from an election court’s decision, are further circumscribed by Section 85A of the Elections Act which limits appeals to the Court of Appeal to matters of law only. It is therefore quite strange and improper that each of the seventeen grounds, without exception, commences with a standard expression “the judge erred in fact and law” or “the learned Judge erred in law and in fact.” Clearly the drafters of the memorandum did not have the legal provision in active contemplation. Had they done so, they would have found that by invoking factual errors, they were inviting jurisdictional objections to their entire appeal.”
22. Further exposition on this issue of an appeal based on points of law only is found in the case of M’Riungu v. Republic [1983] KLR 455, where the Court of Appeal stated thus:
“where a right of appeal is confined to question of law, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of fact and law and it should not interfere with the decision of the trial court or the first appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law”.
23. Going by these decisions, this court proceeds on the basis of the facts as determined by the court of original jurisdiction in the case, the SCC.
24. I agree with the 1st respondent’s submissions that the issue of the locus standi of the 1st respondent to institute the proceedings against the appellant was not raised in the court below and in the grounds of appeal herein. It has only been raised in the submission and so the same does not arise for determination.
25. In any case, the 1st respondent was the one who was dealing with all the parties and knew all the issues that would have raised a cause of action against the appellant. Other than the averment in the witness statement that the 1st respondent was a stranger to it, there was no plea that she lacked the standing to bring the action against the appellant. It is apparent from the facts of the case that the 1st respondent was an agent of a disclosed principal, Jabali Christian Schools, who paid the money into the appellant’s bank account. She said that Jabali Christian Schools gave her the authority to pursue the claim on their behalf in which she had an interest for payment of her commission.
26. The appellant’s argument is that it had no contractual relationship with the 1st respondent and so no cause of action could arise between them. It has relied the case of Auto Garage v Motokov E. (1971) E.A. 519 where SPRY V.P. stated thus:
“I would summarize the position as I see it by saying that if a plaint shows that the Plaintiff enjoyed a right, that the right has been violated and that the Defendant is liable, then, in my opinion, a cause of action has been disclosed and any omission or defect may be put right by amendment. If, on the other hand, any of those essentials is missing, no cause of action has been shown and no amendment is permissible. I think this accords with the words I have quoted from Law, J., in lake Motors’ case with which I respectively agree “
27. It further cited the cases of Cotecna Inspection S.A v Hems Group Trading Company Limited [2007] KECA 354 (KLR) and Kenya Women Finance Trust v Bernard Oyugi Jaoko & 2 others [2018] KEHC 4933 (KLR) for the position that there must be established a nexus between the parties, whether contractual tortious for a cause of action to arise between them.
28. The 1st respondent on its part, citing the Black’s Law Dictionary 9th edition at pp. 251 and the cases of Letang vs. Cooper [1964] 2 All ER 929 at 934, Attorney General & another v Andrew Maina Githinji & another [2016] KECA 817 (KLR) on the definition of a cause of action submits that the 1st respondent had a cause of action against the appellant for money had by the appellant by mistake and on account of unjust enrichment.
29. She further submits that money paid under a mistake is recoverable. She relied on the cases of Onjallah v Kenya Commercial Bank Ltd [2004] KECA 146 (KLR) and Standard Bank Ltd v John Henry Akello [1979] KECA 14 (KLR).
30. She also submits that a cause of action lies against the appellant on account of a cause of action in the nature of unjust enrichment or restitution which is different from contract or tort and he is bound to refund the money paid into its account. That the court will order restitution of the money where the justice of the case demands that the money should be refunded. She relies on the case of Chase International Investment Corporation and Another v Laxman Keshra and 3 others [1978] KECA 7 (KLR) where several authorities on the subject are discussed.
31. Having said that, it is important to bear in mind that the SCC Act exempts the court’s proceedings from the rigid application of the standards of evidence applicable in other court proceedings and permits the court to include as evidence any material that it deems credible or trustworthy (emphasis by underlining supplied). It follows from this provision that it is largely upon the Adjudicator to determine the material to rely upon for as long as it is credible and trustworthy. Section 32 of the Act provides that the strict evidentiary rules applicable in other courts are not wholly applied in the Small Claims Court. It further, provides that the Court may admit as evidence any oral or written testimony, record, or other material even though the same is not admissible as evidence in any other Court under the law of evidence (emphasis by underlining supplied). This means the Adjudicator has the discretion to admit any evidence which may be helpful in establishing whether or not the claim is proved.
32. In the present case, there is undisputed documentary material provided by the 1st respondent and the IP showing that the money was indeed deposited into the appellant’s account held with the 2nd respondent. There was evidence by the 1st respondent and which is not disputed by the appellant that the money ought not to have been deposited into that account by Jabali Christian Schools. Such evidence being placed before the ordinary person, what would he or she decide? Would he or she leave it to the appellant to keep? The answer is an obvious no!
33. It is true that the money was mistakenly deposited into the appellant’s account. It is not disputed that there was no transaction between the appellant and Jabali Christian Schools in which the money was paid to the appellant. The contention by the appellant that the 1st respondent or Jabali Christian Schools for that matter had itself to blame for being negligent does not hold good at all. It was liable to return the money to the respondent and the money was in law recoverable from the appellant as money deposited by mistake (see the case of Delphis Bank Limited v Caneland Limited [2014] KECA 202 (KLR). The appellant was therefore obliged to refund the money to Jabali Christian Schools through the 1st respondent as its agent.
34. My thinking is that considering the provisions of section 17 of the SCC Act, the responsibility of this court when considering an appeal from the SCC is to consider the legality and reasonableness of the decision of the learned Adjudicator. If this court is satisfied that the law was properly considered and applied and a reasonable evaluation of the facts had, then it will not interfere with the findings and determination of the court. The converse would also be true. That where the law was not properly considered and/or applied or where the decision does not seem reasonable from the facts before the court, then this court will interfere. Given the provisions of the SCC Act excluding to a large extent the strict provisions of the law of evidence and the technicalities of procedure under the CPR, I would find that the standard of reasonableness would be that of ordinary man on the street.
35. What the learned Adjudicator needed only to determine was whether in her estimation, having adhered to the rules of natural justice, the documents and the statements of witnesses produced supported the claim or not. In the light of the evidence therein I am satisfied that the learned Adjudicator proceeded correctly in arriving at her finding that the appellant was liable to refund the money paid into its account with the 2nd respondent. The appellant was clearly liable and could not successfully resist the claim through defences that were not tenable in law. It cannot be allowed to keep the money as that would amount to unjust enrichment.
36. A reasonable person looking at the facts as presented herein should find that money had been paid into the appellant’s account by mistake and the appellant had no reason to retain it. Instead, as per the evidence of the 2nd respondent, the appellant went ahead to apply a substantial part of the money to its own use when it very well knew where it had come from and could refund it. So that even a request to the 2nd appellant to reverse the money to the account of Jabali Christian Schools would be of no effect.
37. I am satisfied and I find that the learned Adjudicator proceeded correctly to determine the claim before her and arrived at the correct decision.
38. Consequently, I find that the appeal has no merit and the same is dismissed with costs for both this appeal and before the SCC being awarded to the 1st respondent.
39. Orders accordingly.
40. Delivered, dated and signed on the Virtual Platform, Teams this 16th day of February 2026 and uploaded on the CTS for access by parties.
ANDAYI W. F.
JUDGE
In the presence of:
N/A for the Appellant.
Counsel from the Appellant’s firm Gichuki Kimere & Co. Adv. appeared at some point when the court was sitting but did not appear afterwards for the delivery of judgment.
Wambui (Ms) h/b for Nduati for the 1st Respondent.
Ummu: Court Assistant.