Background:
1. This Appeal emanates from the judgement delivered on 10th March 2024 dismissing the Appellant’s case at the small claim court.
2. The Brief facts of the case is from the pleadings is that Appellant at the request of the Respondent, extended a total of Kshs.75,000/= to the Respondent for partially funding a project involving the setting up of system software and hardware for a company located in Karen.
3. Upon completion of the first and second phase of the project, the Appellant was to receive Kshs.12,500/= and Kshs.21,000/= being proceeds from the investment.
4. It was the Appellant’s case at the Trial Court that since completion of the project on 31st August 2024 the Respondent has failed and or neglected to refund the total amount of money owed to the Appellant being Khs.109,000/=
5. The Trial Court rendered its judgment dismissing the case on grounds that the Appellant had not proved his claim on a balance of probabilities.
The Appeal.
6. The Appellants herein aggrieved by the decision preferred an appeal to this Court seeking to set aside the judgement of the small claims court, the grounds of appeal in the memorandum of appeal dated 27th August 2024 are as follows:
(i) The Adjudicator erred in law and in fact by entirely dismissing the Appellant’s suit which was undefended.
(ii) The Adjudicator erred in law sticking to strict rules of evidence and vacating provisions of Section 34 of the Small Claims Act
(iii) The Adjudicator erred in law by failing to enter judgement in default of appearance after noting the Respondent never entered appearance.
(iv) The Adjudicator erred in law in dismissing the suit for lack of proof or giving without considering the request for formal proof or giving the Appellant an opportunity to adduce more evidence if need be and argue their case.
(v) The Adjudicator further refused to review the said decision despite an application for review dated 13th March 2024 dismissing the Application on 14th August on grounds that the application does not fall under section 41 of the Small Claims Act.
The Submissions:
7. The Appellant vide their submissions dated 15th June 2025 prayed that the Appeal be allowed, judgement of the Small Claims Court be set aside, Judgement be entered in their favour of the Appellant as prayed in the statement of claim and costs of this Appeal together with the interest from date of filing.
8. It’s the Appellant’s submissions that their claim was for a liquidated sum of Kshs.109,000/= despite the Respondent being duly served on more than one occasion they failed to enter appearance or file any defence. The Appellant relied on Section 27 of the Small Claims Court Act.
9. The Appellant submitted that the Trial Court failing to consider Section 32(4) in as far as evidentiary threshold is concerned and ultimately denied him justice.
10. The Appellant submits that once a party makes unequivocal representation, he is stopped from denying if the other party has relied upon it.The Appellant further submitted that documentary evidence submitted was enough to prove the case on balance of probability as the reasonable degree in civil cases.
11. The Appellant faulted the Trial Court for dismissing their application for review. He submitted that their application was grounded on sufficient cause that is failure of the Respondent to appear, misapplication of evidentiary rules and existence of electronic communications.
12. The Appellant faults the Small Claims Court for failing to interpret Section 41 of the Small Claims Court leading to miscarriage of justice.
Analysis of the issue for determination.
13. From the above analysis, the main issue for determination whether the Lower erred in its findings;
14. The jurisdiction of this Court to entertain appeals from the Small Claims Court is strictly circumscribed by Section 38 of the Small Claims Court Act and are limited to matters of law and the appeal is final. Whereas there has been no universally accepted definition of the term ‘matters of law’, there has been some working definitions thereto. In Peter Gichuki King'ara vs. IEBC & 2 others, Nyeri Civil Appeal No. 31 of 2013, Court of Appeal held that a decision challenged on the basis of wrongful exercise of discretion raises a point of law.
15. The High Court, therefore, is duty-bound to assist the Small Claims Court realize it’s said objective and it ought to consider appeals from the said Court through those special lenses.
16. Having said so, the instant appeal calls upon this Court to ascertain whether the trial Court properly handled the issue of burden of proof which is a matter of law. Sections 107, 108 and 109 of the Evidence Act deal with the burden of proof.
17. I have perused the record of appeal dated 12th February 2025 and studied all the pleadings and I agree with the Trial Court that the Appellant has failed to avail any evidence that indeed he sent any money to the Respondent.
18. No communication was placed before the Trial Court that indeed he had engaged the Respondent regarding the issue of software development and subsequent earnings, it is the responsibility of the Appellant even in absence of the Respondent to demonstrate to Court that indeed money exchanged hands and that there was any form of agreement between them.
19. Looking at the statement of claim dated 15th November 2023 no evidence was attached to support the averments by the Appellant. The Appellant dispute alleging that the dispute was on breach of agreement failed to table any evidence on the contract.
20. The Appellant in the statement of claim averred that he sent the Respondent breakdown of the amount owed in communication and messages in the month of August which the Respondent acknowledge but failed to table any evidence before Court to support his averments.
21. Therefore, the Learned Adjudicator correctly applied the standard of proof, and on a balance of probabilities found the claim had not been proved.
22. The Appeal is therefore dismissed, since the Respondent did not participate in the appeal, there shall be no orders as to costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 26th day of June 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Mwongera h/b for Etemesi Learned Counsel for the Appellant.
No appearance for the Respondent.
Michael - Court Assistant.
1. This Appeal emanates from the judgement delivered on 10th March 2024 dismissing the Appellant’s case at the small claim court.
2. The Brief facts of the case is from the pleadings is that Appellant at the request of the Respondent, extended a total of Kshs.75,000/= to the Respondent for partially funding a project involving the setting up of system software and hardware for a company located in Karen.
3. Upon completion of the first and second phase of the project, the Appellant was to receive Kshs.12,500/= and Kshs.21,000/= being proceeds from the investment.
4. It was the Appellant’s case at the Trial Court that since completion of the project on 31st August 2024 the Respondent has failed and or neglected to refund the total amount of money owed to the Appellant being Khs.109,000/=
5. The Trial Court rendered its judgment dismissing the case on grounds that the Appellant had not proved his claim on a balance of probabilities.
The Appeal.
6. The Appellants herein aggrieved by the decision preferred an appeal to this Court seeking to set aside the judgement of the small claims court, the grounds of appeal in the memorandum of appeal dated 27th August 2024 are as follows:
(i) The Adjudicator erred in law and in fact by entirely dismissing the Appellant’s suit which was undefended.
(ii) The Adjudicator erred in law sticking to strict rules of evidence and vacating provisions of Section 34 of the Small Claims Act
(iii) The Adjudicator erred in law by failing to enter judgement in default of appearance after noting the Respondent never entered appearance.
(iv) The Adjudicator erred in law in dismissing the suit for lack of proof or giving without considering the request for formal proof or giving the Appellant an opportunity to adduce more evidence if need be and argue their case.
(v) The Adjudicator further refused to review the said decision despite an application for review dated 13th March 2024 dismissing the Application on 14th August on grounds that the application does not fall under section 41 of the Small Claims Act.
The Submissions:
7. The Appellant vide their submissions dated 15th June 2025 prayed that the Appeal be allowed, judgement of the Small Claims Court be set aside, Judgement be entered in their favour of the Appellant as prayed in the statement of claim and costs of this Appeal together with the interest from date of filing.
8. It’s the Appellant’s submissions that their claim was for a liquidated sum of Kshs.109,000/= despite the Respondent being duly served on more than one occasion they failed to enter appearance or file any defence. The Appellant relied on Section 27 of the Small Claims Court Act.
9. The Appellant submitted that the Trial Court failing to consider Section 32(4) in as far as evidentiary threshold is concerned and ultimately denied him justice.
10. The Appellant submits that once a party makes unequivocal representation, he is stopped from denying if the other party has relied upon it.The Appellant further submitted that documentary evidence submitted was enough to prove the case on balance of probability as the reasonable degree in civil cases.
11. The Appellant faulted the Trial Court for dismissing their application for review. He submitted that their application was grounded on sufficient cause that is failure of the Respondent to appear, misapplication of evidentiary rules and existence of electronic communications.
12. The Appellant faults the Small Claims Court for failing to interpret Section 41 of the Small Claims Court leading to miscarriage of justice.
Analysis of the issue for determination.
13. From the above analysis, the main issue for determination whether the Lower erred in its findings;
14. The jurisdiction of this Court to entertain appeals from the Small Claims Court is strictly circumscribed by Section 38 of the Small Claims Court Act and are limited to matters of law and the appeal is final. Whereas there has been no universally accepted definition of the term ‘matters of law’, there has been some working definitions thereto. In Peter Gichuki King'ara vs. IEBC & 2 others, Nyeri Civil Appeal No. 31 of 2013, Court of Appeal held that a decision challenged on the basis of wrongful exercise of discretion raises a point of law.
15. The High Court, therefore, is duty-bound to assist the Small Claims Court realize it’s said objective and it ought to consider appeals from the said Court through those special lenses.
16. Having said so, the instant appeal calls upon this Court to ascertain whether the trial Court properly handled the issue of burden of proof which is a matter of law. Sections 107, 108 and 109 of the Evidence Act deal with the burden of proof.
17. I have perused the record of appeal dated 12th February 2025 and studied all the pleadings and I agree with the Trial Court that the Appellant has failed to avail any evidence that indeed he sent any money to the Respondent.
18. No communication was placed before the Trial Court that indeed he had engaged the Respondent regarding the issue of software development and subsequent earnings, it is the responsibility of the Appellant even in absence of the Respondent to demonstrate to Court that indeed money exchanged hands and that there was any form of agreement between them.
19. Looking at the statement of claim dated 15th November 2023 no evidence was attached to support the averments by the Appellant. The Appellant dispute alleging that the dispute was on breach of agreement failed to table any evidence on the contract.
20. The Appellant in the statement of claim averred that he sent the Respondent breakdown of the amount owed in communication and messages in the month of August which the Respondent acknowledge but failed to table any evidence before Court to support his averments.
21. Therefore, the Learned Adjudicator correctly applied the standard of proof, and on a balance of probabilities found the claim had not been proved.
22. The Appeal is therefore dismissed, since the Respondent did not participate in the appeal, there shall be no orders as to costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 26th day of June 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Mwongera h/b for Etemesi Learned Counsel for the Appellant.
No appearance for the Respondent.
Michael - Court Assistant.