Introduction
1. This appeal emanates from the judgment delivered on July 7, 2023, in Milimani SCC COMM 7266 of 2022, in which the trial court partially allowed the Appellant’s Claim against the Respondent.
2. The background of the matter is that the Appellant, David Kimani, had sued the Respondent, Space and Style Limited, vide a Statement of Claim dated 21st November 2022 for Kshs. 620,742.74, alleging breach of some 37 roofing construction subcontract agreements.
3. The Hon. Adjudicator, after hearing the matter, entered judgment in favor of the Appellant in the sum of Kshs. 122,350.74 only, having found that out of the Kshs. 620,742.74 claimed by the Appellant, a sum of Kshs. 498,392 had already been settled by the Respondent.
4. The Appellant was aggrieved by the decision by the Hon. Adjudicator and lodged an appeal to this Court vide a memorandum of appeal dated 6th September 2023, raising six grounds of appeal, primarily contending that the learned Resident Magistrate erred in law and in fact by failing to appreciate the distinction between him and his company, Quicktech Construction Limited.
5. According to the Appellant, the payments of Kshs. 498,392, which the trial court found to have been made to him, related to payments in respect of different contracts between the Respondent and Quicktech Construction Limited, a company he was a co-director, were separate legal entities.
6. The Appellant maintained that contrary to the findings of the court, the Appellant had separate contracts with the Respondent in his personal capacity, which remained unsettled.
7. Based on the foregoing grounds, the Appellant prayed that the Appeal be allowed with costs and the judgment of the trial court be set aside and substituted with a judgment of this Court awarding the Appellant a sum of Kshs. 620,742.72 as per his statement of Claim, plus costs and interest.
8. The Appeal proceeded by way of written submissions. The Appellant filed his submissions dated 5th November 2024. That of the Respondent is dated 11th February 2025.
Analysis and determination
9. This is an appeal from the Small Claims Court. The jurisdiction of this Court in such appeals is limited to points of law only under the provisions of section 38 of the Small Claims Court Act, which provides that: -
“38. Appeals
(1) A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.
(2) An appeal from any decision or order referred to in subsection (1) shall be final.
10. The Court of Appeal in the case of Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] eKLR, addressed the duty of a court considering points of law in the following terms: -
“This is a second appeal. I am alive to my duty as a second appellate court to determine matters of law only unless it is shown that the courts below-considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. (See: Stanley N. Muriithi & Another versus Bernard Munene Ithiga (2016) eKLR).”
11. A perusal of the grounds of appeal and submissions by the Appellant reveals that though crafted as legal arguments, the issues arising from the grounds of appeal are basically factual. In essence, what the Appellant is asking this Court to do is to establish whether the Kshs. 498,392/ paid by the Respondent related to the contract between the Appellant and the Respondent, or whether that payment was in respect of the contract between the Respondent and QuickTech Construction Limited, a company associated with the Appellant.
12. The Appellant argued that he entered into contracts with the Respondent in his personal capacity, while Quicktech Construction Limited, a company in which he is a director alongside Samuel Gicheru Mburu, a separate legal entity, also had contracts and a separate suit (SCC COMM E7253 of 2022) with the Respondent. The Appellant asserts that the payment of Kshs. 498,392 by the Respondent was specifically for the settlement of the case involving Quicktech Construction Limited, and not for his personal claim in SCC COMM/E7265 of 2022.
13. The Respondent, on the other hand, argued that the Appellant, acting as the director and signatory of Quicktech Construction Limited, engaged the Respondent through the company for the projects in question. The Respondent argues that the Appellant cannot now distinguish between his personal capacity and his role as a director. The Respondent asserts that these are parallel claims arising from the same transaction.
14. I have carefully reviewed the Judgment of the Hon. Adjudicator and note that the trial court at paragraphs 13 and 14 of the Judgment stated as follows: -
“13. The Respondent relied on a bank statement from Stanbic Bank which showed that indeed the Respondent paid Kshs. 498,392 to Kimani David Kamau”
“16. The Court therefore enters judgment in favour of the Claimant as against the Respondent for Kshs. 122,350.74… ”
15. From the above two paragraphs of the trial court’s judgment, it is clear that the Hon. Adjudicator made her decision based on the evidence as contained in the Bank Statement from Stanbic Bank Limited, which, according to the trial court, demonstrated that “the Respondent paid Kshs. 498,392 to Kimani David Kamau”, this, is a factual finding by which, this Court is bound.
16. In the case of Wachira v Mwai (Civil Appeal E022 of 2023) [2024] KEHC 3173 (KLR) (15 March 2024) (Judgment), the court, faced with a similar issue, stated as follows: -
“I have not seen a single issue of law being raised by the Appellant. It is not enough to cite very complicated Latin terms. They must be a fair and correct issue of law. The court cannot be faulted that it reached a decision on no evidence. The Small Claims Court is the queen when it comes to evidence. I have evaluated the same and noted that the court exercised its discretion correctly.”
17. The Hon. Adjudicator was entitled to evaluate the evidence and come up with the evidence she believed. The strict rules of evidence do not bind the Court below. This is on the basis of Section 32 of the Small Claims Court Act, which provides that: -
“32. Exclusion of strict Rules of evidence
(1) The Court shall not be bound wholly by the Rules of evidence
(2) Without prejudice to the generality of subsection (1), the Court may admit as evidence in any proceedings before it, any oral or written testimony, record or other material that the Court considers credible or trustworthy even though the testimony, record or other material is not admissible as evidence in any other Court under the law of evidence.
(3) Evidence tendered to the Court by or on behalf of a party to any proceedings may not be given on oath but that Court may, at any stage of the proceedings, require that such evidence or any part thereof be given on oath whether orally or in writing….”
18. The Honourable Learned Adjudicator, having found, based on the evidence adduced by the parties, that the sum of Kshs. 498,292 was indeed paid to the Appellant from the Respondent’s account at Stanbic Bank, this Court has no reason to depart from that finding.
Determination
19. The upshot of the foregoing is that I make the following orders: -
i. The Appeal herein lacks merit and is consequently dismissed with costs of Kshs.50,000/- payable within 30 days.
ii. The file is closed.
20. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
17TH DAY OF JULY 2025
ADO MOSES
JUDGE
In the Presence of
Moses C/A
Omondi………………for the Appellant
N/A…………………. ……..for Respondent
1. This appeal emanates from the judgment delivered on July 7, 2023, in Milimani SCC COMM 7266 of 2022, in which the trial court partially allowed the Appellant’s Claim against the Respondent.
2. The background of the matter is that the Appellant, David Kimani, had sued the Respondent, Space and Style Limited, vide a Statement of Claim dated 21st November 2022 for Kshs. 620,742.74, alleging breach of some 37 roofing construction subcontract agreements.
3. The Hon. Adjudicator, after hearing the matter, entered judgment in favor of the Appellant in the sum of Kshs. 122,350.74 only, having found that out of the Kshs. 620,742.74 claimed by the Appellant, a sum of Kshs. 498,392 had already been settled by the Respondent.
4. The Appellant was aggrieved by the decision by the Hon. Adjudicator and lodged an appeal to this Court vide a memorandum of appeal dated 6th September 2023, raising six grounds of appeal, primarily contending that the learned Resident Magistrate erred in law and in fact by failing to appreciate the distinction between him and his company, Quicktech Construction Limited.
5. According to the Appellant, the payments of Kshs. 498,392, which the trial court found to have been made to him, related to payments in respect of different contracts between the Respondent and Quicktech Construction Limited, a company he was a co-director, were separate legal entities.
6. The Appellant maintained that contrary to the findings of the court, the Appellant had separate contracts with the Respondent in his personal capacity, which remained unsettled.
7. Based on the foregoing grounds, the Appellant prayed that the Appeal be allowed with costs and the judgment of the trial court be set aside and substituted with a judgment of this Court awarding the Appellant a sum of Kshs. 620,742.72 as per his statement of Claim, plus costs and interest.
8. The Appeal proceeded by way of written submissions. The Appellant filed his submissions dated 5th November 2024. That of the Respondent is dated 11th February 2025.
Analysis and determination
9. This is an appeal from the Small Claims Court. The jurisdiction of this Court in such appeals is limited to points of law only under the provisions of section 38 of the Small Claims Court Act, which provides that: -
“38. Appeals
(1) A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.
(2) An appeal from any decision or order referred to in subsection (1) shall be final.
10. The Court of Appeal in the case of Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] eKLR, addressed the duty of a court considering points of law in the following terms: -
“This is a second appeal. I am alive to my duty as a second appellate court to determine matters of law only unless it is shown that the courts below-considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. (See: Stanley N. Muriithi & Another versus Bernard Munene Ithiga (2016) eKLR).”
11. A perusal of the grounds of appeal and submissions by the Appellant reveals that though crafted as legal arguments, the issues arising from the grounds of appeal are basically factual. In essence, what the Appellant is asking this Court to do is to establish whether the Kshs. 498,392/ paid by the Respondent related to the contract between the Appellant and the Respondent, or whether that payment was in respect of the contract between the Respondent and QuickTech Construction Limited, a company associated with the Appellant.
12. The Appellant argued that he entered into contracts with the Respondent in his personal capacity, while Quicktech Construction Limited, a company in which he is a director alongside Samuel Gicheru Mburu, a separate legal entity, also had contracts and a separate suit (SCC COMM E7253 of 2022) with the Respondent. The Appellant asserts that the payment of Kshs. 498,392 by the Respondent was specifically for the settlement of the case involving Quicktech Construction Limited, and not for his personal claim in SCC COMM/E7265 of 2022.
13. The Respondent, on the other hand, argued that the Appellant, acting as the director and signatory of Quicktech Construction Limited, engaged the Respondent through the company for the projects in question. The Respondent argues that the Appellant cannot now distinguish between his personal capacity and his role as a director. The Respondent asserts that these are parallel claims arising from the same transaction.
14. I have carefully reviewed the Judgment of the Hon. Adjudicator and note that the trial court at paragraphs 13 and 14 of the Judgment stated as follows: -
“13. The Respondent relied on a bank statement from Stanbic Bank which showed that indeed the Respondent paid Kshs. 498,392 to Kimani David Kamau”
“16. The Court therefore enters judgment in favour of the Claimant as against the Respondent for Kshs. 122,350.74… ”
15. From the above two paragraphs of the trial court’s judgment, it is clear that the Hon. Adjudicator made her decision based on the evidence as contained in the Bank Statement from Stanbic Bank Limited, which, according to the trial court, demonstrated that “the Respondent paid Kshs. 498,392 to Kimani David Kamau”, this, is a factual finding by which, this Court is bound.
16. In the case of Wachira v Mwai (Civil Appeal E022 of 2023) [2024] KEHC 3173 (KLR) (15 March 2024) (Judgment), the court, faced with a similar issue, stated as follows: -
“I have not seen a single issue of law being raised by the Appellant. It is not enough to cite very complicated Latin terms. They must be a fair and correct issue of law. The court cannot be faulted that it reached a decision on no evidence. The Small Claims Court is the queen when it comes to evidence. I have evaluated the same and noted that the court exercised its discretion correctly.”
17. The Hon. Adjudicator was entitled to evaluate the evidence and come up with the evidence she believed. The strict rules of evidence do not bind the Court below. This is on the basis of Section 32 of the Small Claims Court Act, which provides that: -
“32. Exclusion of strict Rules of evidence
(1) The Court shall not be bound wholly by the Rules of evidence
(2) Without prejudice to the generality of subsection (1), the Court may admit as evidence in any proceedings before it, any oral or written testimony, record or other material that the Court considers credible or trustworthy even though the testimony, record or other material is not admissible as evidence in any other Court under the law of evidence.
(3) Evidence tendered to the Court by or on behalf of a party to any proceedings may not be given on oath but that Court may, at any stage of the proceedings, require that such evidence or any part thereof be given on oath whether orally or in writing….”
18. The Honourable Learned Adjudicator, having found, based on the evidence adduced by the parties, that the sum of Kshs. 498,292 was indeed paid to the Appellant from the Respondent’s account at Stanbic Bank, this Court has no reason to depart from that finding.
Determination
19. The upshot of the foregoing is that I make the following orders: -
i. The Appeal herein lacks merit and is consequently dismissed with costs of Kshs.50,000/- payable within 30 days.
ii. The file is closed.
20. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
17TH DAY OF JULY 2025
ADO MOSES
JUDGE
In the Presence of
Moses C/A
Omondi………………for the Appellant
N/A…………………. ……..for Respondent