(An appeal from the ruling and order of the Small Claims Court at Nairobi (J. Omollo, SRM/Adjudicator) delivered on 5th September 2023 in SCCCOMM No. E7550 of 2022)
1. This is an appeal from the Small Claims Court. By statement of claim dated 30th November 2022, the appellant sued the respondent herein, (as the 2nd respondent), alongside Stephen Kiruki Kinuthia t/a Elikinu Enterprise, (as the 1st respondent) seeking to recover the sum of Kshs. 210,965.00 together with costs and interest from 24th February 2022.
2. The 1st respondent (Stephen Kiruki Kinuthia) failed to enter appearance or file his defence. Consequently, interlocutory judgment was entered against him. The 2nd respondent, the respondent herein, in his statement of response dated 20th January 2023 denied being indebted to the appellant. He pleaded that the 1st respondent paid all debts and consequently, none was pending.
3. The matter proceeded for hearing, as between the appellant and the respondent herein, where each party called witnesses accordingly. In its judgment dated 5th April 2023, the adjudicator found that there was no sufficient proof to demonstrate that the respondent herein received cash from the 1st respondent(Stephen Kiruki Kinuthia) as alleged by the appellant. In addition, the court held that there was no privity of contract between the appellant and the respondent and as a result,that the respondent was not liable to satisfy the sum claimed. The adjudicator did not make any finding on costs.
4. Aggrieved with the findings on costs, the respondent filed a Notice of Motion dated 18th May 2023, before the same Small Claims Court, seeking the following reliefs:
1) THAT the Honorable Court be pleased to review the judgment delivered on 5th April 2023 with a view to determining whether the 2nd respondent is entitled to costs;
2) THAT this Honorable Court be pleased to grant costs for defending the suit to the 2nd respondent;
3) THAT the costs of this application be provided for to the 2nd respondent.
5. The application was supported by the grounds on the body of the motion and the supporting affidavit sworn by Sahil Javer, advocate for the respondent. He urged the trial court to allow the application since the suit against it was dismissed and thus, he was entitled to costs. That the court erroneously failed to make a determination on the issue of costs when dismissing the suit in his favor. That the delay in filing the application, was not inordinate, and was excusable as the instructing advocate was indisposed during the intervening period.
6. The appellant filed grounds of opposition dated 27th May 2023. It also filed a replying affidavit sworn on 29th May 2023 by Wilfred Nyangera Maranga advocate for the appellant. The appellant prayed that the application be dismissed for the following reasons: no reasonable grounds had been disclosed to warrant a review of the court’s judgment; the trial court was functus officio upon rendering its judgment; the respondent had invited the trial court to sit on its own appeal, the filing of the application was a procedure not known in law; and an award of costs is discretionary and the failure to award the same did not warrant the court’s review of its orders.
7. In its ruling dated 5th September 2023, the adjudicator held in part:
“I have considered the judgment herein delivered on 5th April 2023 where the court dismissed the case against the 2nd respondent. Indeed, award of costs is discretionary and as per the provisions of section 33 of the Small Claims Court Act, which provides that the court may award costs to the successful party in any proceedings. The court inadvertently failed to pronounce itself on the issue of costs for the 2nd respondent who was a successful party therefore I find that there was an error of law on the face of the record warranting an order for review of the judgement.
The 2nd respondent herein successfully defended the suit through the firm of O & M Law LLP therefore being a successful party, the 2nd respondent is awarded costs to be borne by the claimant.
Consequently, based on the above reasons, the application dated 5th April 2023 is allowed as follows
1. The orders in the judgment dated 5th April 2023 be and is hereby reviewed as follows:
a) The case against the 2nd respondent is dismissed with costs to be borne by the claimant;
b) Default judgment was already entered against the 1st respondent for the sum of Kshs. 210.965/= plus costs and interest from the date of filing the suit until payment in full.
2. The amended judgment is attached to this ruling
3. There shall be no orders as to costs of the application.”
8. Aggrieved by those findings, the appellant filed its memorandum of appeal dated 13th September 2023 that raised eight grounds impugning the findings of the trial court as follows: the trial court was functus officio and could not therefore entertain the application the subject of this appeal; the trial court was essentially sitting on appeal against its own decision; the issues raised by the respondent were grounds for appeal and not review; the respondent did not satisfy the mandatory test set out in section 41 of the Small Claims Court Act; the award on costs was erroneous; the trial court failed to consider the appellant’s submissions; and the trial court misapprehended the facts and the evidence and as a result arrived at a wrong decision. For these reasons, the appellant urged this court to allow the appeal by setting aside the decision of the trial court.
9. The appeal was heard on the basis of the parties’ written and oral submissions. The appellant submitted that by dint of section 41 (2) of the Small Claims Court Act, the application was incompetent as it was filed outside the statutory period of 30 days. Since leave was not sought, then the application in itself was a non-starter. In addition, the appellant submitted that the respondent failed to demonstrate that there was an error apparent on the face of the record as to warrant the exercise of discretion by the trial court. Finally, an award of costs did not fall within the ambit of review. It is for this reason that the appellant prayed that the appeal be found meritorious.
10. The respondent in his submissions urged that while there was a delay in lodging the application, the same was excusable. This is because evidence of the counsel’s indisposition was adduced before the trial court. On whether there was an error apparent on the face of the record, he submitted that the court failed to pronounce itself on costs when section 27 of het Civil Procedure Act provides that costs follow the event. It was their submission that the issue of costs was not a subject of appeal since no determination had been made. The respondent prayed that this court does dismiss the appeal with costs.
11. Having considered the trial court record, and parties submissions, the point of law arising for determination is whether the adjudicator complied with the provisions of section 41 of the Small Claims Court Act when reviewing the orders of the court.
12. Section 41 of the Small Claims Court Act provides;
“(1) An Adjudicator may, on application by any aggrieved party or on his or her own motion, review any order of the Court on the ground that—
(a) the order was made ex-parte without notice to the applicant;
(b) the claim or order was outside the jurisdiction of the Court;
(c) the order was obtained fraudulently;
(d) there was an error of law on the face of the record; or
(e) new facts previously not before the Court have been discovered by either of the parties.
(2) The application referred to under subsection (1) shall be made within thirty days of the order or award sought to be reviewed or such other period as the court A
13. From the record, the adjudicator delivered its judgment on the 5th April 2023. the respondent filed a Notice of Motion dated 18th May 2023 seeking prayers set out in the earlier paragraphs of this judgment. Arithmetically, the application was filed 13 days after the statutory set out time of 30days. Notably, the respondent conceded that the Application was filed outside the statutory set timeline. They urge that the court has discretion to admit such an application which it did on the grounds and supporting evidence provided for in the application.
14. I have taken the liberty to review the Notice of Motion application dated 18th May 2023 and I have noted that no where did the respondent seek the court’s intervention to exercise its discretion in order extend the 30 days period within which they ought to have filed the application. All that the respondent did was to inform the court on the grounds supporting the application that its counsel who had the personal conduct of the matter on behalf of the 2nd respondent was indisposed between the timelines for which the application ought to have been preferred. I also do note that the trial court in its ruling subject of this appeal, did not address itself to the issue of the application being filed out of time without the leave of court.
15. Section 41 (2) of the Small Claims Court Act provides that an application for review shall be made within thirty days of the order or award sought to be reviewed or such other period as the court may allow. The provision thus gives a court the discretion to enlarge time as may be fit and sufficient for the dispensation of justice. Thus, the pragmatic procedure is for the respondent to first seek the court to exercise its discretion and grant leave to extend time before seeking the orders sought. In the absences of such a prayer and an order of the court extending the time, the application dated 18th May 2023 was filed outside the statutory 30 days’ time period provided for under section 41(2) of the Small Claims Court Act. I draw my reasoning from the Supreme Court decision in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR.
16. Consequently, the Notice of Motion Application dated 18th May 2023 having been filed without leave of court was improperly before court and was a nullity and of no legal consequence since it was filed without seeking leave to file it out of time. The same is struck out.
17. In the circumstances therefore and guided by the Supreme Court decision, I do agree with the appellants submissions that the appellant ought to have first filed the application to extend time before filing their Notice of Motion Application seeking review. This Appeal therefore succeeds with costs assessed at Ksh. 25,000/=.
It is so ordered.
Delivered, Dated and Signed this 24th day of January 2025