CHRISTOPHER KINA MALOGHO VS ALICE SAGHE MAJALA

(Being an Appeal from the judgment and order of HONOURABLE v. Muthoni Resident Magistrate/Adjudicator in Small Claims Court Commercial Case SCC COMM Case No. E154 OF 2022 dated 21^st November 2022.

                                                     JUDGEMENT

1. CHRISTOPHER KINA MALOGHO the above named Appellant herein being dissatisfied with the whole judgment and Order of Honourable V. Muthoni, Resident Magistrate/Adjudicator  filed the appeal herein  against the said decision on the following grounds: -
2. THAT the learned trial magistrate erred in law and in fact in presiding over and entertaining proceedings based and founded wholly on an incompetent statement of claim in that the purported statement of claim and accompanying statement were not signed by the Claimant and contravened the express and mandatory provisions of order 2 Rule 16 Civil procedure Rules and Section 23 of the Small Claims Court Act.
3. THAT the learned Resident Magistrate/Adjudicator erred in law and in fact in ignoring and falling to make any decision or finding on the Respondent’s Counter Claim on which therefore judgment ought to have been given and the said judgment contravened the express and mandatory provisions of Order 21 Civil Procedure Rules.
4. THAT learned trial magistrate/Adjudicator erred in law and in fact in ignoring evidence adduced by the Appellant.
5. THAT the learned trial magistrate/Adjudicator erred in law and fact in failing to realize and appreciate that the judgment or decision was erroneous because there was no evidence on the projected or expected returns or profits from the business during the time in question which the Appellant can be alleged to have failed to deposit in the Partnership account.
6. THAT the learned Adjudicator erred in law and fact in arrival at a one sided decision not supported by the facts or evidence before the Court.
7. THAT the learned Magistrate/Adjudicator erred in law and fact in totally ignoring the evidence adduced on behalf of and by the Appellant.
8. THAT the learned magistrate/Adjudicator erred in law and fact in ignoring the fact that the Claimant even retained all the relevant documents including the Registration Certificate of the Intended Partnership.

He prayed that ;

1. THAT this Appeal be allowed and judgment and order of the Honourable Adjudicator dated 21^st November 2022 be vacated and set aside.
2. THAT the Respondent be condemned in the costs of this Appeal and at the Lower Court.
3. THAT this Honourable Court be pleased to grant any further relief that it may deem just and fit to issue.
4. This is  a first appellate court and the duty of this court is to re-evaluate the evidence on record and arrive at its own conclusion bearing in mind that it had no opportunity to see the witnesses  as was held in the case of Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR.

1. The facts of the case are that the appellant and the respondent entered into a joint  Chicken feeds sale business venture which was valued at Kshs 700,000/= . They differed 3 months later over an allegation of unpaid profits to the claimant . Claimant reported the case to Kiembeni police station and respondent was summoned  and he agreed to pay Kshs. 500,000/= to the claimant onK28.2.22andshe was to pay the balance in 3 monthly instalments of Kshs . 67,000/= each . as per KLthe claimant the respondent paid Kshs 182,000/= leaving a balance of Kshs. 518.000/= .The respondent filed a response to claim on 6.10.22 and denied the claim and accused   claimant of breaching the agreement dated 10.2.22 and verbal agreement in the name of Liciacharis           
2. Entrerprises and that she wants to enrich he self unjustly . Counterclaimed for breach of contract in his reply to claims  In her evidence , she said that  the business in known  b y the name Lisiacharis and that they opened an account at KCB  respondent paid Kkshs 209,000/= only leaving a balance of Kshs . 491,000/= . She denied taking stock  from the business . he said that out of the said kshs 700,000/= they spent Kshs. 33,283/= om license, certificate of registration, cyber charges , rent and transport expenses .
3. This is a first appellate court and the duty of this court is to re-evaluate the evidence of the trial court and arrive at its own decision bearing in mind that it did not see the demeanour of witnesses during their testimony as was held in the case of Abok vs ……………………………
4. On whether the claim and the statements were signed, Appellant submitted that the same were not signed and thus this was fatal top claimants case. I have seen the said claim and I note that the same is not signed. Section 23 of the small claims Act provides that -

Delivered Virtually Via teams Platform in the presence of

Owiwa : Court assistant

Parties absent .