1. This is an appeal by the respondent in a small claim matter filed at the Small Claims Court, Mombasa, by Ms Joan Wanjiru Mwangi, through a statement of claim dated 10th January 2025, in which a sum of Kes 990,000/= was sought. The cause of action was an alleged sale transaction involving a motor vehicle with registration number KCR 194R, a Honda Insight, which the appellant sold to the respondent for the sum of Kes 570,000/-. The respondent paid this amount in 2 instalments of Kes 480,000/-, deposited in the NCBA Account No.1004638, in the name of the appellant, and in a subsequent transfer of Kes 90,000/-. Both were interbank transfers from the respondent’s Cooperative Bank account to the appellant’s said NCBA account.
2. According to the respondent, it had been agreed that the appellant would clear his loan obligation to NCBA Bank. However, that did not happen. The car sold to the respondent by the appellant was repossessed thrice, as a result of which she opted to pay the bank herself, which she did on 20th July 2022. The respondent paid Kes 572,770/-, after which the logbook was issued to her.
3. The respondent averred that the appellant was supposed to repay the money to her. To her chagrin, he never did. The respondent averred in the statement of claim that all he received from the appellant were empty promises, as the payment never materialized.
4. In his response, the appellant denied that the Small Claims Court at Mombasa had jurisdiction to hear and determine the matter. He contended that the claim should have been filed in Nakuru, where the sale took place, or in Bungoma, where he resides. He further contended that the suit violated section 42 of the Small Claims Court Act and Article 164 of the Constitution.
5. Regarding merits, he stated that he entered into a sale agreement on 30th July 2020 with the respondent. According to him, the agreement was honoured by all the parties. He, in particular, handed over possession of the motor vehicle and executed the relevant transfer. He denied that there were any unsettled obligations on his part after the sale concluded. He stated that the respondent did not produce any proclamation or a demand letter.
6. The matter in the court below proceeded by way of documents only under section 30 of the Small Claims Court Act. The parties filed written submissions, which the said court considered in its reasoned judgment of 14th March 2025.
7. In determining the matter, the court below first considered the question of jurisdiction. On the basis of section 15(1)(a) of the Small Claims Court Act, it found that, because the respondent (the claimant in the Court below) resides in Nyali, Mombasa, the court had jurisdiction to hear the matter.
8. On the merits of the case, the court found on the basis of the documentary evidence that the respondent did indeed transfer Kes 572,770 to the NCBA, whereafter the bank agreed to transfer ownership to the respondent, two years or thereabouts after the initial agreement was made. She found that, since there was a default clause in the initial sale agreement and there had been a default, the respondent was entitled to Kes 114,000/- as interest. The learned magistrate thus found the amount payable as being Kes 686,770/-, which she ordered.
9. Being aggrieved, the appellant filed an appeal to this court. The Memorandum of Appeal is dated 14th March 2025. It seeks to have the judgment of the Court below set aside and/or reviewed and for the Respondent to be condemned to pay costs. The appeal raises 7 grounds, which, when considered critically, are really 2: whether the court below had jurisdiction and whether there was sufficient proof of the claim made in the Small Claims Court.
10. The appeal was canvassed by way of written submissions. The appellant's submissions are dated 5th October 2025. In those submissions, he reiterated his earlier averment that the court lacked territorial jurisdiction because the cause of action arose in Nakuru, whereas he resides in Bungoma. He falsely accused the learned magistrate of failing to address the jurisdiction question in her decision.
11. The appellant contended that there was only one agreement. It was submitted that the claim, on the other hand, was based on “subsequent and unproven oral agreement”, which he denied. He averred that there were contradictions in the judgment and that he was denied his right to a fair hearing.
12. On her part, the respondent identified the issues for determination as being:
1. Whether the record of appeal is complete;
2. Whether the trial court had jurisdiction to hear the matter; and
3. Whether the Respondent discharged her burden of proof.
13. On the first issue, it was contended that the Record of Appeal lacked the claimant’s written submissions and, crucially, the typed proceedings of the trial court. It was urged that this court, as the first appellate court, was denied the opportunity to fully examine the factual and legal basis on which the trial court reached its decision. In support of the said submissions, reliance was placed on the decision of Nzei, J in Ready Consultancy Co Ltd v Genya & Another [2024] KEELRC 162 (KLR) and Ngetsa v Karisa & 2 Others [2024] KEELC 3425 (KLR) in which, in both instances, appeals were struck out for being incomplete. Counsel for the respondent therefore urged that the appeal be dismissed with costs to the respondent.
14. On jurisdiction, the respondent referred to Section 15 of the Small Claims Court Act and averred that since the Respondent resides in Mombasa, the court below had jurisdiction to hear and determine the matter.
15. Regarding the third issue, it was urged that the respondent discharged her burden of proof as she produced the sale agreement, the bank statement, as well as the letter dated 31st October 2022. It was submitted that by dint of that, the respondent discharged her burden of proof under section 107 of the Evidence Act.
16. The respondent’s counsel urged that upon discharging her burden of proof, the burden shifted to the appellant, who failed to produce any documentary evidence in support of his case, thereby leaving the Respondent’s evidence uncontroverted and unchallenged. In her view, the evidence of the respondent was consistent.
17. The respondent contended that she discharged her burden of proof and prayed that the appeal be dismissed with costs.
18. This is the first and only appeal available under the Small Claims Court Act. Under the said Act, appeals may be filed only against the trial court's decisions on matters of law. In my view, the question of whether the court properly exercised its discretion is an issue of law.
19. In the case of Mbogo & Another v Shah (1968) EA 93, it was held that:
“That this court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has acted on matters on which it should not have acted, or because it has failed to take into consideration matters it should have taken into consideration, and in doing so arrived at a wrong conclusion.”
20. I have considered the record of appeal, the decision of the court below, the submissions of the parties and the applicable law. In my view, the issues I must consider are:
i Whether the court below had jurisdiction to hear and determine the matter before it or if it lacked territorial jurisdiction;
ii Whether the Record of Appeal was complete; and
iii Whether the learned magistrate properly exercised her discretion while analyzing the evidence.
21. I must reiterate at this point that under section 38 of the Small Claims Court Act, the High Court may only consider appeals from the Small Claims Court, founded on questions of law. Issues regarding the exercise of discretion are matters of law.
22. I will look at each of the 3 issues I identified, beginning with that regarding jurisdiction, as it is foundational (see Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR)).
23. Was the case filed before the right court? Section 11(2) of the Small Claims Court Act states that:-
“When determining the local limits of the jurisdiction of the court, the Chief Justice shall ensure that such courts are accessible in every sub-county and progressively in other decentralized units of judicial service delivery.”
24. In section 15(1), the Small Claims Court Act goes on to list circumstances under which the court acquires territorial jurisdiction. It is necessary to set out the said subsection verbatim.
“A person has the right to lodge a claim before the Court only if—
(a)such a person ordinarily resides or carries on business within the local limits of the jurisdiction of the Court;
(b)the subject matter of the claim is situated within the local limits of the jurisdiction of the Court;
(c)the contract to which the claim relates was either made or was intended to be performed within the local limits of the jurisdiction of the Court;
(d)the cause of action arose within the local limits of the jurisdiction of the Court; or
(e)the defendant to the claim resides within the local limits of the jurisdiction of the Court.”
(emphasis mine).
25. What is apparent from the foregoing is that the Small Claims Court was intended to democratize the judicial branch by bringing judicial services closer to the people, hence the clear language used in section 11(1). There was a deliberate effort to ensure that claimants would not be denied access to the court. My reading of section 15 is that the list given therein was disjunctive; each of the considerations in paragraphs (a) to (e) is separate. Thus, the territorial jurisdiction question would be met under (a) where the claimant resides “within the local limits of the jurisdiction of the court.”
26. There was no dispute that the respondent now resides in Nyali. I found no averment to the contrary in the record of the court below. Accordingly, the question of jurisdiction fails. I find and hold that the court below had jurisdiction to hear and determine the matter.
27. Is the fact that the record of appeal is incomplete a fundamental defect? I have seen the decisions relied on by the respondent. The said decisions were made by courts with equal status to this Court and are thus of persuasive authority. I agree with the main thrust of the said decisions, to the effect that the appellate court must have the record of the court below to enable it to consider the import and purport of what is sought to be set aside or reviewed. Ordinarily, that would lead me to make a decision that aligns with the decisions quoted. However, noting that the proceedings in the court below were based solely on documents, I am not persuaded that the court will be unable to discern the issues in dispute merely because the record was incomplete. That being so, I am not persuaded by the submissions of the respondent that I should dismiss the appeal, in limine, on the said ground.
28. Turning to the question as to whether the court below properly exercised its discretion, I note that the learned magistrate carefully considered the evidence which was tendered, in particular that the sale agreement was entered into on 30th July 2020. She noted that payments were made, including the 20th July 2022 payment, as shown in the respondent’s bank statement, which shows a bank transfer to the NCBA in the name of “Ben Kibet Kiplagat” for the amount of Kes 572,770/-.
29. The learned magistrate correctly found that once the respondent had discharged her burden of proof, the appellant ought to have tendered evidence in rebuttal. This did not occur. Mr Kiplagat did not explain why a payment of the said amount was being made in his favour.
30. The upshot of the foregoing is that I find and hold that the appeal has no merit. The same is dismissed.
31. Who should bear the costs? In my view, the appellant is a very dishonest person. He clearly sold the car to the respondent, took money from her, purporting to use it to pay off a loan to NCBA, and never paid off the loan despite receiving the money. His actions caused the respondent to take out a loan to pay off the bank. Despite knowing how harmful his actions had been, the appellant aggravated the injury by calling his victim names and never showing remorse.
32. His actions, though lawful, in seeking to use technicalities to defeat a valid claim, bespeak his depravity. In the circumstances, this court condemns him to pay costs in this court and in the court below.
33. It is so ordered.
Dated and signed at Nairobi this 14th day of July 2026.
2. According to the respondent, it had been agreed that the appellant would clear his loan obligation to NCBA Bank. However, that did not happen. The car sold to the respondent by the appellant was repossessed thrice, as a result of which she opted to pay the bank herself, which she did on 20th July 2022. The respondent paid Kes 572,770/-, after which the logbook was issued to her.
3. The respondent averred that the appellant was supposed to repay the money to her. To her chagrin, he never did. The respondent averred in the statement of claim that all he received from the appellant were empty promises, as the payment never materialized.
4. In his response, the appellant denied that the Small Claims Court at Mombasa had jurisdiction to hear and determine the matter. He contended that the claim should have been filed in Nakuru, where the sale took place, or in Bungoma, where he resides. He further contended that the suit violated section 42 of the Small Claims Court Act and Article 164 of the Constitution.
5. Regarding merits, he stated that he entered into a sale agreement on 30th July 2020 with the respondent. According to him, the agreement was honoured by all the parties. He, in particular, handed over possession of the motor vehicle and executed the relevant transfer. He denied that there were any unsettled obligations on his part after the sale concluded. He stated that the respondent did not produce any proclamation or a demand letter.
6. The matter in the court below proceeded by way of documents only under section 30 of the Small Claims Court Act. The parties filed written submissions, which the said court considered in its reasoned judgment of 14th March 2025.
7. In determining the matter, the court below first considered the question of jurisdiction. On the basis of section 15(1)(a) of the Small Claims Court Act, it found that, because the respondent (the claimant in the Court below) resides in Nyali, Mombasa, the court had jurisdiction to hear the matter.
8. On the merits of the case, the court found on the basis of the documentary evidence that the respondent did indeed transfer Kes 572,770 to the NCBA, whereafter the bank agreed to transfer ownership to the respondent, two years or thereabouts after the initial agreement was made. She found that, since there was a default clause in the initial sale agreement and there had been a default, the respondent was entitled to Kes 114,000/- as interest. The learned magistrate thus found the amount payable as being Kes 686,770/-, which she ordered.
9. Being aggrieved, the appellant filed an appeal to this court. The Memorandum of Appeal is dated 14th March 2025. It seeks to have the judgment of the Court below set aside and/or reviewed and for the Respondent to be condemned to pay costs. The appeal raises 7 grounds, which, when considered critically, are really 2: whether the court below had jurisdiction and whether there was sufficient proof of the claim made in the Small Claims Court.
10. The appeal was canvassed by way of written submissions. The appellant's submissions are dated 5th October 2025. In those submissions, he reiterated his earlier averment that the court lacked territorial jurisdiction because the cause of action arose in Nakuru, whereas he resides in Bungoma. He falsely accused the learned magistrate of failing to address the jurisdiction question in her decision.
11. The appellant contended that there was only one agreement. It was submitted that the claim, on the other hand, was based on “subsequent and unproven oral agreement”, which he denied. He averred that there were contradictions in the judgment and that he was denied his right to a fair hearing.
12. On her part, the respondent identified the issues for determination as being:
1. Whether the record of appeal is complete;
2. Whether the trial court had jurisdiction to hear the matter; and
3. Whether the Respondent discharged her burden of proof.
13. On the first issue, it was contended that the Record of Appeal lacked the claimant’s written submissions and, crucially, the typed proceedings of the trial court. It was urged that this court, as the first appellate court, was denied the opportunity to fully examine the factual and legal basis on which the trial court reached its decision. In support of the said submissions, reliance was placed on the decision of Nzei, J in Ready Consultancy Co Ltd v Genya & Another [2024] KEELRC 162 (KLR) and Ngetsa v Karisa & 2 Others [2024] KEELC 3425 (KLR) in which, in both instances, appeals were struck out for being incomplete. Counsel for the respondent therefore urged that the appeal be dismissed with costs to the respondent.
14. On jurisdiction, the respondent referred to Section 15 of the Small Claims Court Act and averred that since the Respondent resides in Mombasa, the court below had jurisdiction to hear and determine the matter.
15. Regarding the third issue, it was urged that the respondent discharged her burden of proof as she produced the sale agreement, the bank statement, as well as the letter dated 31st October 2022. It was submitted that by dint of that, the respondent discharged her burden of proof under section 107 of the Evidence Act.
16. The respondent’s counsel urged that upon discharging her burden of proof, the burden shifted to the appellant, who failed to produce any documentary evidence in support of his case, thereby leaving the Respondent’s evidence uncontroverted and unchallenged. In her view, the evidence of the respondent was consistent.
17. The respondent contended that she discharged her burden of proof and prayed that the appeal be dismissed with costs.
18. This is the first and only appeal available under the Small Claims Court Act. Under the said Act, appeals may be filed only against the trial court's decisions on matters of law. In my view, the question of whether the court properly exercised its discretion is an issue of law.
19. In the case of Mbogo & Another v Shah (1968) EA 93, it was held that:
“That this court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has acted on matters on which it should not have acted, or because it has failed to take into consideration matters it should have taken into consideration, and in doing so arrived at a wrong conclusion.”
20. I have considered the record of appeal, the decision of the court below, the submissions of the parties and the applicable law. In my view, the issues I must consider are:
i Whether the court below had jurisdiction to hear and determine the matter before it or if it lacked territorial jurisdiction;
ii Whether the Record of Appeal was complete; and
iii Whether the learned magistrate properly exercised her discretion while analyzing the evidence.
21. I must reiterate at this point that under section 38 of the Small Claims Court Act, the High Court may only consider appeals from the Small Claims Court, founded on questions of law. Issues regarding the exercise of discretion are matters of law.
22. I will look at each of the 3 issues I identified, beginning with that regarding jurisdiction, as it is foundational (see Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR)).
23. Was the case filed before the right court? Section 11(2) of the Small Claims Court Act states that:-
“When determining the local limits of the jurisdiction of the court, the Chief Justice shall ensure that such courts are accessible in every sub-county and progressively in other decentralized units of judicial service delivery.”
24. In section 15(1), the Small Claims Court Act goes on to list circumstances under which the court acquires territorial jurisdiction. It is necessary to set out the said subsection verbatim.
“A person has the right to lodge a claim before the Court only if—
(a)such a person ordinarily resides or carries on business within the local limits of the jurisdiction of the Court;
(b)the subject matter of the claim is situated within the local limits of the jurisdiction of the Court;
(c)the contract to which the claim relates was either made or was intended to be performed within the local limits of the jurisdiction of the Court;
(d)the cause of action arose within the local limits of the jurisdiction of the Court; or
(e)the defendant to the claim resides within the local limits of the jurisdiction of the Court.”
(emphasis mine).
25. What is apparent from the foregoing is that the Small Claims Court was intended to democratize the judicial branch by bringing judicial services closer to the people, hence the clear language used in section 11(1). There was a deliberate effort to ensure that claimants would not be denied access to the court. My reading of section 15 is that the list given therein was disjunctive; each of the considerations in paragraphs (a) to (e) is separate. Thus, the territorial jurisdiction question would be met under (a) where the claimant resides “within the local limits of the jurisdiction of the court.”
26. There was no dispute that the respondent now resides in Nyali. I found no averment to the contrary in the record of the court below. Accordingly, the question of jurisdiction fails. I find and hold that the court below had jurisdiction to hear and determine the matter.
27. Is the fact that the record of appeal is incomplete a fundamental defect? I have seen the decisions relied on by the respondent. The said decisions were made by courts with equal status to this Court and are thus of persuasive authority. I agree with the main thrust of the said decisions, to the effect that the appellate court must have the record of the court below to enable it to consider the import and purport of what is sought to be set aside or reviewed. Ordinarily, that would lead me to make a decision that aligns with the decisions quoted. However, noting that the proceedings in the court below were based solely on documents, I am not persuaded that the court will be unable to discern the issues in dispute merely because the record was incomplete. That being so, I am not persuaded by the submissions of the respondent that I should dismiss the appeal, in limine, on the said ground.
28. Turning to the question as to whether the court below properly exercised its discretion, I note that the learned magistrate carefully considered the evidence which was tendered, in particular that the sale agreement was entered into on 30th July 2020. She noted that payments were made, including the 20th July 2022 payment, as shown in the respondent’s bank statement, which shows a bank transfer to the NCBA in the name of “Ben Kibet Kiplagat” for the amount of Kes 572,770/-.
29. The learned magistrate correctly found that once the respondent had discharged her burden of proof, the appellant ought to have tendered evidence in rebuttal. This did not occur. Mr Kiplagat did not explain why a payment of the said amount was being made in his favour.
30. The upshot of the foregoing is that I find and hold that the appeal has no merit. The same is dismissed.
31. Who should bear the costs? In my view, the appellant is a very dishonest person. He clearly sold the car to the respondent, took money from her, purporting to use it to pay off a loan to NCBA, and never paid off the loan despite receiving the money. His actions caused the respondent to take out a loan to pay off the bank. Despite knowing how harmful his actions had been, the appellant aggravated the injury by calling his victim names and never showing remorse.
32. His actions, though lawful, in seeking to use technicalities to defeat a valid claim, bespeak his depravity. In the circumstances, this court condemns him to pay costs in this court and in the court below.
33. It is so ordered.
Dated and signed at Nairobi this 14th day of July 2026.