REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
MACHAKOS LAW COURTS
CIVIL APPEAL NO. E047 OF 2024
DENKO PROPERTIES LIMITED….….……………………............….....…..APPELLANT
VERSUS
CHETAN ARVINDKUMAR AMLANI…….....……………….......……....…RESPONDENT
(Being an Appeal from the Judgement of Hon. B.A. Luova (Ms), Adjudicator in SCC COMM. Suit No. E312 of 2022 at the Small Claims Court at Machakos delivered on 1ST FEBRUARY, 2024)
JUDGEMENT
Introduction
1. By a Statement of Claim dated 14/10/2022, the Respondent sued the Appellant seeking for judgement in the sum of Kshs.650,000/= being the net returns for two seasons, costs and interest of the Claim.
2. The Respondent’s case is that vide a contract dated 27/03/2019, it was agreed that the Appellant would construct a green house on the parcel of land No. 27 measuring 10m x 30m at a cost of Kshs.650,000/= which sum was duly paid. The Appellant failed, refused and neglected to construct the green house despite several follow-ups by the Respondent hence the Claim.
3. On 14/09/ the Appellant filed its response to the Claim and denied the averments in the Statement of Claim in toto.
4. The Claim proceeded for hearing where parties adduced both oral and documentary evidence. At the close of the case, the court gave directions on filing of submissions and both parties complied. Upon considering the evidence tendered and the submissions, the trial Adjudicator found that it is not disputed that the Respondent paid Kshs.650,000/= to have a green house constructed on their land parcel No.27. It is also not in dispute that the said green house was not completed by 30/04/2020 when the Respondent evicted the Appellant. The evidence that the Respondent evicted the Appellant prior to 30/04/2020 via email was not proved as the said email was not produced in court. The Adjudicator also observed that, in his evidence, the witness stated that Mr. Cetan Amlani had granted consent through an email dated 30/07/2019 for extension of time, however the alleged consent was not proved and therefore unfounded. Having found that no consent was granted for extension of time and the fact that the Respondent had met his obligation and paid Kshs.650,000/= for construction of the green house which is not in dispute, the Adjudicator found that the Respondent had proved the Claim on a balance of probabilities. Therefore, judgement was entered for the Respondent herein as against the Appellant for Kshs.650,000/= plus cost and interest from the date of filing the Claim until payment in full.
Grounds of Appeal
5. Being dissatisfied by the above judgement, the Appellant lodged this Appeal vide a Memorandum of Appeal dated 19.02.2024 raising the following seven grounds :-
1. THAT the Learned Magistrate erred in law by failing to apply the provisions of the Law of Contract Act.
2. THAT the Learned Magistrate erred in law by failing to find that the Respondent herein frustrated the execution of the contractual terms subject of the suit at the trial court.
3. THAT the Learned Magistrate erred in law by failing to consider the legal effect of the various vitiating factors affecting the contractual terms subject of this matter.
4. THAT the Learned Magistrate erred in law by finding that the Appellant had breached the contractual provisions in the agreement between the parties herein in absence of the requisite legal conditions for the same.
5. THAT the Learned Magistrate erred in law by misinterpreting the contractual provisions in the agreement between the parties herein.
6. THAT the Learned Magistrate erred in law by delivering her Judgement without jurisdiction to do so, more than three (3) days after the hearing of this case on 31st October 2023.
7. THAT the Learned Magistrate erred in law by entertaining and hearing this case without jurisdiction to do so.
6. The appeal was canvassed through written submissions. The Appellant filed its submissions dated 23/06/2025 whilst the Respondent’s submissions are dated 01/07/2025.
Analysis and Determination.
7. This being an appeal from the Small Claims Court, the jurisdiction of the Court is circumscribed in section 38 of the Small Claims Court Act. Section 38 of the Small Claims Court Act provides as follows:
1. A person aggrieved by the decision or an order of the Court may appeal against that decision or an order to the High Court on matters of law.
2. An appeal from any decision or order referred to in sub section (1) shall be final.
8. The above provision means that this Court can only intervene if the evidence on record does not reasonably support the conclusions made by the trial court. More specifically, an appeal before this Court is essentially limited to points of law. Such points of law would include misapplication of statutory provisions; misdirection on evidence and errors in legal evaluation of facts as noted hereinbefore.
9. Amongst the grounds of appeal herein are that the Learned Adjudicator erred in law by failing to apply the provisions of the Law of Contract Act; failed by misinterpreting the contractual provisions in the agreement between the parties herein; and that she erred in law by delivering her Judgement without Jurisdiction to do so, more than three (3) days after the hearing of this case on 31/10/2023 which was without jurisdiction.
10. I have carefully read the Record of Appeal, the grounds of appeal and rival submissions by the parties’ counsel. In my view, the above grounds raise points of law hence the Appeal is competent and properly before the court. I will however summarize the Appellants’ grounds into two pertinent legal issues for determination in this appeal as follows:-
i. Whether delivery of the judgement more than three (3) days after the hearing of the claim was without jurisdiction;
ii. Whether this court should allow the appeal and set aside the trial court’s judgement;
i. Whether delivery of the judgement more than three (3) days after the hearing of the claim was without jurisdiction;
11. The Appellants submit that the Small Claims Court Act 2016 was established with the primary objective of enhancing access to justice through the expeditious resolution of disputes and placed reliance on Section 34 of the Small Claims Court Act, which provides for the expeditious disposal.
12. It is submitted that this legislative framework signals a clear intent for strict adherence to timelines, aiming to provide a swift and efficient judicial process. In the present case, the hearing in the Small Claims Court concluded on 31st October 2023. The judgment, however, was delivered significantly later, on 1st February 2024. This period spans over three months, specifically 92 days, between the hearing and the delivery of the judgment. The Appellant cited the case of Macharia v Wanjohi t/a Gitonyi Supplies Services (Commercial Case E245 OF 2023), where the court therein quoted the decision in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & Others (2012) eKLR
13. That in light of the foregoing, the Learned Magistrate did indeed err in law by failing to give her judgment within the mandatory timelines prescribed by Section 34 (1) and (2) of the Small Claims Act hence the Court’s jurisdiction had lapsed more than three (3) days after the hearing of this case.
14. On the other hand, the Respondent submits that the import of section 34 of the Small Claims Court Act is for the expeditious disposal of all proceedings and not to interfere with the discretion of the court as to the handling of proceedings. Whereas the Act provides for timelines, the court itself has the flexibility to render the judgment outside the stipulated timeline owing to fact that the said provision is directory and not mandatory. Hence every judgment delivered outside the three-day timeline of hearing are valid in the eyes of the law.
15. It is submitted that the phrase, ‘so far as is practicable in the circumstances’ as used in Section 34(1) of the Small Claims Court Act meant that where the circumstances rendered it impossible to deliver judgment within the 60- day period, then the judgment of the Small Claims Court would still be valid. From the proceedings in this matter, it is clearly evident that it is the Appellants (then Respondent) who occasioned the delay in the finalization of this matter. The Appellant was duly served however sat on his hands until when an Auctioneer was instructed to execute the default judgment entered. It is upon the execution that the Appellant’s filed an application to set aside the interlocutory judgement. It was not possible to deliver the judgment within the said 60 days from the date of filing the suit as the Appellant themselves contributed to the delay. The Appellant, having benefitted from the Adjudicator’s discretion that allowed them to file their response to the claim late and the interlocutory judgment entered against it set aside, cannot plead strict timelines when they are partly responsible for the delay in the disposal of the claim.
16. It is the Respondent’s position that whereas the afore-stated section is couched on mandatory terms, it does not vitiate any judgment delivered by courts after the said term.
17. Section 34 of the Small Claims Court Act provides as follows:-
“34. Expeditious disposal of cases
(1) All proceedings before the Court on any particular day so far as is practicable shall be heard and determined on the same day or on a day-to-day basis until final determination of the matter which shall be within sixty days from the date of filing the claim.
(2) Judgment given in determination of any claim shall be delivered on the same day and in any event, not later than three (3) days from the date of the hearing.”
18. As submitted by the Respondent, the import of Section 34 of the Act is for the expeditious disposal of all proceedings and not to interfere with the discretion of the court as to the handling of proceedings. Whereas the Act provides for timelines, the court itself has the flexibility to render the judgment outside the stipulated timeline owing to fact that the said provision is directory and not mandatory. Hence every judgment delivered outside the three-day timeline of hearing are valid in the eyes of the law.
19. The phrase, ‘so far as is practicable in the circumstances’ as used in Section 34(1) of the Small Claims Court Act meant that where the circumstances rendered it impossible to deliver judgment within the 60- day period, then the judgment of the Small Claims Court would still be valid.
20. From the proceedings in this matter, it is evident that the Appellants (then Respondent) to some extend occasioned the delay in the finalization of this matter. The Respondent’s were duly served with the Claim, however they failed to defend it until after when an Auctioneer was instructed to execute the default judgment entered against them.
21. It is following the execution that the Appellant’s filed an application to set aside the default judgement. It was not possible to thereafter hear the parties and deliver the judgment within the 60 days from the date of filing the suit. The Appellants, having benefitted from the Adjudicator’s discretion that allowed them to file their response to the claim late in the day and the interlocutory judgment entered against them set aside, cannot plead strict timelines when they are substantially responsible for the delay in the determination of the claim.
22. It is this court’s position that whereas the afore-stated section is couched in mandatory terms, it does not vitiate any judgment delivered by courts after the said period, the section does not give sanctions for any proceedings undertaken outside the statutory limit.
23. See the reasoning of Magare J in Biosystems Consultants versus Nyali Links Acarde (Civil Appeal E185 of 2003) 2023] KEHC 21068 (KLR) (31 July 2023) (Ruling) where the learned Judge held that:-
“The legislative intent of section 34 of the Small Claims Court Act was not to impose unnecessary bottlenecks. Even tax statutes had timelines for paying or declaring taxes. It was never that non-payment made those taxes void. There should be consequences. In the Income Tax Act, the non-compliance with deadlines did not vitiate the taxes. It attracted known penalties. What were the consequences under section 34 of the small claims court?… A purposive interpretation should be given to statutes so as to reveal the intention of the statute. The purpose of the Small Claims Court Act was to facilitate expeditious disposal of the disputes while at the same time respecting the right to be heard. The net result was that balancing the two may result at times to overshooting the 60 days. The 60 days did not have penal consequences for good reason. They were aspirational. That was part of having access to justice over amounts that needed not be in the normal system. Allowing the application would open floodgates that would eventually defeat the purpose of the Act.”
24. Similarly in the case of Crown Beverages Limited vs MFI Document Solutions Limited (Civil Appeal E833 of 2021) [2023] KEHC 58 (KLR) (Civ) (17 January 2023) (Judgment), Justice Majanja stated as follows: -
“Although section 34(2) of the SCCA is couched in mandatory terms, the court must look at the context of the provision in light of the guiding principles which include, inter alia, the timely disposal of all proceedings before the court using the least expensive method. The provision as to delivery of judgment is meant to be directory and not mandatory as it is not the intention of the SCCA to invalidate any proceedings that violate the statutory timelines. To adopt such a position would undermine the statutory objects and cause injustice to the parties as the case would have to be reheard.
The issue of breach of timelines for delivery of judgment is not a novel issue and has been dealt with by our courts in reference to order 21 rule 1 of the Civil Procedure Rules which provides that judgments must be delivered within 60 days upon conclusion of the hearing. In Nyagwoka Ogora alias Kennedy Kemoni Bwogora v Francis Osoro Maiko Civil Appeal No 271 of 2000 (UR) the Court of Appeal observed as follows: The real question is what is the consequence of non-compliance therewith? no doubt that rule is an important one in the expeditious dispensation of justice. And it is made to be obeyed. However, if non-compliance with the rule were to have the effect contended for by the appellant, we think the overall result would be more injustice than justice to the parties. A lot of time and resources spent in litigation would come to naught if judgments delivered after the expiry of 42 days were to be voided or declared void ipso facto. The rule cannot and in our view could not have been intended to deprive a trial judge of his jurisdiction to write and pronounce judgment in a case he has heard. In our considered view, while non-compliance with the rule and particularly persistent non-compliance or inordinate delay in compliance should call for censure of the judicial officer concerned from those in-charge of judicial administration, it should not be a ground for vitiating a duly delivered judgment.
Being of that persuasion we would reject ground 1 of appeal.11. There may be instances where the delay is inordinate and such delay prejudicial to the parties. In such cases, the court may set aside the judgment as was held by the Court of Appeal in Manchester Outfitters Services Limited and Another v Standard Chartered Financial Services Limited and Another [2002] eKLR. The appellant does not contend that the failure to deliver the judgment within the stipulated timelines was prejudicial or that the delay was inordinate. I therefore reject the appellant’s contention that the judgment is null and void.”
25. Lastly, in the case of Wekesa v Matata (Civil Appeal E685 of 2022) [2024] KEHC 8284 (KLR) (28 June 2024) (Judgment) Justice Njagi had this to say:-
“I take the view postulated in the latter case that non-compliance with the section is not fatal to a case. The court has to look into what the intention of the legislature was when it passed the section. I do not think that the legislature intended to mean that the court ceased to exercise jurisdiction over a matter filed in that court which was not finalized within 60 days. If that were the case, it would defeat the purpose of the whole Act. I thereby dismiss the argument that the judgment of the Adjudicator in this matter was a nullity”
26. Based on the above decisions, it’s my finding that the trial court/ Adjudicator had jurisdiction to deliver the judgment notwithstanding the timeline it was delivered under. The same is merited and proper. I find this ground of appeal to be lacking in merit and the same is disallowed.
ii. Whether this court should allow the appeal and set aside the trial court’s judgement;
27. The Appellant submits that Clause 3.5.1 of the contract dated 27th March 2019 (on extension of time) states as follows;
“As soon as the Builder recognizes that the work will not be finished in the time agreed upon, he/she shall inform the owner of the need for more time to complete the works and the reason for the request for the increased time”.
28. That the only remaining item was some steel frames and cladding for the Respondents’ greenhouse which was difficult to find in good time due to shortage of construction materials in the global market caused by Covid-19 pandemic which had caused great global panic in 2019 and 2020.
29. This information was conveyed to the Respondents vide the Email dated 19th June 2019 appearing at page 35 of the Record of Appeal. The Appellant had complied with clause 3.5.1 of the contract by explaining the circumstances that had caused delays as required by the contract.
30. The Appellant states that it was illegally evicted by the Respondent when it had already constructed the greenhouse where the only remaining part was a few steel frames and the cladding (the polythene covering) for the same which was left in the Respondents possession. The greenhouse was constructed and all other steel frames were put in place. Only the covering (cladding) remained and the Appellant was evicted from the plot before it could place the said cladding on the steel frames.
31. It was the Respondent's evidence that the other steel frames and cladding were difficult to find in good time due to shortage of construction materials in the global market caused by the onset of the Covid-19 pandemic which had caused great global panic in 2019 and 2020. This information was duly communicated to the Respondent as per the contract. After the Appellant had managed to obtain cladding for the greenhouse they were evicted. The Appellant had procured the materials and thus the Appellant does not owe anything to the Respondent as alleged or at all. Reliance was placed on the case of DORCA A. SITO V SOUTH NYANZA SUGAR CO. LTD [2018] eKLR.
32. The Appellant also submits that the pandemic was clearly an act of God which was beyond the Appellant’s control and that the challenges in finding the construction materials were communicated to the Respondents as per the contract in clause 3.5.1. Reference was made to the Supreme Court decision in KWANZA ESTATES LIMITED V JOMO KENYATTA UNIVERSITY OF AGRICULTURE AND TECHNOLOGY (PETITION E001 OF 2024) [2024] KESC 74 (KLR) (6 DECEMBER 2024) (JUDGMENT) quoted a decision by the Honourable Judge Ogola J where they stated that;-
“We find the decision in Pankaj Transport PVT Limited v SDV Transami Kenya Limited [2017] eKLR by the High Court (Ogola J) to be of persuasive value as it expounded the doctrine of force majeure quite aptly. The doctrine of force majeure has its origin in French law where there are express force majeure provisions in the French civil code which excuse contractual performance where events have happened outside the parties’ control which could not have been foreseen at the time of contracting and which could not have been avoided by appropriate measures. The doctrine of force majeure has expanded to include events caused by both human actions and natural occurrences, defining situations beyond the control of parties that prevent them from meeting contractual obligations. Further, the interpretation the courts give is dependent on the choice of wording and events delineated by the parties in their contract.”
33. The Appellant contends that the pandemic was a force majeure event that caused difficulties to everyone in the world. The Appellant's performance of the contract was reliant on the global market which was seriously affected by the pandemic that hit Kenya in March 2020. The Respondent frustrated the Appellant's execution of its part of the contract by having it evicted from the plot. It is the Appellant’s argument that the learned Magistrate erred in law by misinterpreting the contractual provisions in the agreement.
34. On this issue, the Respondent’s position is that the terms of the contract were binding on all the parties therein. As a matter of fact, Clause 13 of the said contract expressly stated that:-
“Each of the parties hereto agrees and confirm for the purpose of Law of Contract Act (Chapter 23 Laws of Kenya) that it has executed this agreement for sale with the intention to bind itself to the contents hereof”.
35. The court on the execution of contacts; in the case of International Aircraft Group SA vs Airway Kenya Aviation Limited [2020] eKLR stated as follows: -
“…Parties to a contract that they have entered voluntarily are bound by its terms and conditions.”
36. That the Appellant having executed the contract out of their free will, for all intents and purposes were bound to the said terms of the contract. They cannot turn around and seek refuge from this court in varying the terms of the contract. It is now a longstanding established principle of law, that parties to contract are bound by the terms and conditions thereof, and that it is not the business of courts to rewrite such contracts. This principle was espoused in the case of National Bank of Kenya Ltd vs. Pipe Plastic Samkolit (K) Ltd (2002) 2 E.A. 503, (2011) eKLR wherein the learned judges of the Court of Appeal at page 507 stated that: -
“A court of law cannot rewrite a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved.”
37. Further in the case of Pius Kimaiyo Langat vs. Co-operative Bank of Kenya Ltd (2017) eKLR the Court of Appeal held that: -
“We are alive to the hallowed legal maxim that it is not the business of Courts to rewrite contracts between parties, they are bound by the terms of their contracts, unless coercion, fraud or undue influence are pleaded and proved.”
38. From the foregoing, the Respondent at trial sufficiently satisfied the trial court that the Appellants breached the contract between the parties by going against the terms that they were bound to.
39. I have considered the contract dated 27/3/2019 made between CHETAN ARVINDMUMAR AMLANI (Owner) and DENKO PROPERTIES LIMITED (Builder) which is the subject of this matter and I note that Clause 3.5.1 of the contract provides for extension of time as follows;
“As soon as the Builder recognizes that the work will not be finished in the time agreed upon, he/she shall inform the owner of the need for more time to complete the works and the reason for the request for the increased time”.
40. The Appellant asserts that it requested the Respondent for extension of time vide the email dated 19th June 2019 appearing at page 35 of the Record of Appeal. I have keenly perused this particular email which is reproduced as follows:-
“Good Morning Chetan & team
Greetings from Greengro International. This is an update regarding the construction progress of your greenhouses at Greenhub Estate. For a few months now, we have been and still are experiencing delays in delivery of some steel frames from our major steel supplier apparently due to a countrywide shortage of some raw materials in the steel industry. Please find attached our most recent email communication with our supplier. The missing frames are crucial for the construction process to proceed since they form the arches for the roofing structure. However kindly note that we have procured and prepared all other construction materials and we just await these missing frames to proceed. According to our supplier, we anticipate to receive them by end of this month. We are currently at 40% completion but once we have the missing frames delivered on site it will take a maximum of 2 weeks to complete construction of your greenhouse(s) and transplant the seedlings into the greenhouse. We sincerely apologize for this delay and appreciate your understanding that it is beyond our control. Thank you for your continued support.
Best Regards,”
41. Also, the email only talks of the reason for the delay in completing the construction which was attributed to the missing frames and it does not at all seek for extension of time. As I understand the email, Greengro International according to their supplier anticipated to receive the missing frames by end of that month. They were currently at 40% completion but once they got the missing frames delivered on site it would take a maximum of 2 weeks to complete construction of the Respondent’s greenhouse(s) and transplant the seedlings into the greenhouse.
42. At paragraph 9 of the Response to Claim dated 6th September 2023, the Appellant stated that the Claimant (Respondent herein) frustrated the Appellant’s execution of it’s part of the contract whereas another company known as Green Gro International Limited was also evicted from the Respondent’s plot where it had planted crops in a joint venture with the Respondent.
43. With the above, Green Gro International Limited was a completely different company from the Appellant. Clearly, there is no doubt that the email is from Greengro International and not Denko Properties Limited, the Appellant herein. I am struggling to understand how Greengro International is appearing in the email addressing the Respondent on a contract it is not a party to and not the Appellant herein. In the absence of any evidence on the trial court’s record on any relationship between the two companies. Therefore, I find the said email to be misplaced.
44. Taking all the matters into consideration, I am convinced that somehow the Appellant did some part of the construction although the same was not completed within the agreed time. None of the parties adduced any evidence on how far the construction had been done. Only at paragraph 15 of the Appellant’s submissions dated 9th November 2023 filed at the trial court, the Appellant submitted that the steel frame was 85% done and the covering was only 15% which was to be completed save for the challenge experienced in sourcing for the materials. The Appellant did not adduce evidence including photographs of the work so far done. This court is aware that submissions cannot take the place of evidence and will not rely on the approximated percentage of the work done as submitted by the Appellant at the trial court.
45. Furthermore, the Respondent was silent on the progress of work done by the Appellant at the time of termination of the contract herein. In fact, in cross examination, the Respondent confirmed that arches and few poles were installed (at page 13 of the trial court’s proceedings).
46. Based on the above analysis, this court is of the considered view that the trial court ought not to have awarded the Respondent the entire Kshs.650,000/= taking into account that fact that the Respondent agreed that the Appellant had done part of the work. In the circumstances and in applying the principle of justice and fairness in this matter, I therefore find that the Appellant is entitled to a refund of 70% only of the agreed amount of Kshs.650,000/= for the uncompleted construction which is Kshs.455,000/= plus costs and interest at the Small Claims Court.
47. In the premises, the appeal partly succeeds and I make the following orders that:
a. The trial court’s Magistrate/Adjudicator had jurisdiction to deliver the judgment notwithstanding the timeline it was delivered under. The same is merited and proper.
b. The Appellant shall refund the Respondent Kshs.455,000/= plus costs and interest of the Small Claims Court.
c. Each party to bear their own costs of the Appeal.
d. There shall be a stay of execution of 30 days.
It is so ordered. This file is closed.
JUDGMENT DATED & SIGNED AT MACHAKOS THIS 28TH JULY 2026
NOEL. I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 28TH JULY 2026
IN THE HIGH COURT OF KENYA AT MACHAKOS
MACHAKOS LAW COURTS
CIVIL APPEAL NO. E047 OF 2024
DENKO PROPERTIES LIMITED….….……………………............….....…..APPELLANT
VERSUS
CHETAN ARVINDKUMAR AMLANI…….....……………….......……....…RESPONDENT
(Being an Appeal from the Judgement of Hon. B.A. Luova (Ms), Adjudicator in SCC COMM. Suit No. E312 of 2022 at the Small Claims Court at Machakos delivered on 1ST FEBRUARY, 2024)
JUDGEMENT
Introduction
1. By a Statement of Claim dated 14/10/2022, the Respondent sued the Appellant seeking for judgement in the sum of Kshs.650,000/= being the net returns for two seasons, costs and interest of the Claim.
2. The Respondent’s case is that vide a contract dated 27/03/2019, it was agreed that the Appellant would construct a green house on the parcel of land No. 27 measuring 10m x 30m at a cost of Kshs.650,000/= which sum was duly paid. The Appellant failed, refused and neglected to construct the green house despite several follow-ups by the Respondent hence the Claim.
3. On 14/09/ the Appellant filed its response to the Claim and denied the averments in the Statement of Claim in toto.
4. The Claim proceeded for hearing where parties adduced both oral and documentary evidence. At the close of the case, the court gave directions on filing of submissions and both parties complied. Upon considering the evidence tendered and the submissions, the trial Adjudicator found that it is not disputed that the Respondent paid Kshs.650,000/= to have a green house constructed on their land parcel No.27. It is also not in dispute that the said green house was not completed by 30/04/2020 when the Respondent evicted the Appellant. The evidence that the Respondent evicted the Appellant prior to 30/04/2020 via email was not proved as the said email was not produced in court. The Adjudicator also observed that, in his evidence, the witness stated that Mr. Cetan Amlani had granted consent through an email dated 30/07/2019 for extension of time, however the alleged consent was not proved and therefore unfounded. Having found that no consent was granted for extension of time and the fact that the Respondent had met his obligation and paid Kshs.650,000/= for construction of the green house which is not in dispute, the Adjudicator found that the Respondent had proved the Claim on a balance of probabilities. Therefore, judgement was entered for the Respondent herein as against the Appellant for Kshs.650,000/= plus cost and interest from the date of filing the Claim until payment in full.
Grounds of Appeal
5. Being dissatisfied by the above judgement, the Appellant lodged this Appeal vide a Memorandum of Appeal dated 19.02.2024 raising the following seven grounds :-
1. THAT the Learned Magistrate erred in law by failing to apply the provisions of the Law of Contract Act.
2. THAT the Learned Magistrate erred in law by failing to find that the Respondent herein frustrated the execution of the contractual terms subject of the suit at the trial court.
3. THAT the Learned Magistrate erred in law by failing to consider the legal effect of the various vitiating factors affecting the contractual terms subject of this matter.
4. THAT the Learned Magistrate erred in law by finding that the Appellant had breached the contractual provisions in the agreement between the parties herein in absence of the requisite legal conditions for the same.
5. THAT the Learned Magistrate erred in law by misinterpreting the contractual provisions in the agreement between the parties herein.
6. THAT the Learned Magistrate erred in law by delivering her Judgement without jurisdiction to do so, more than three (3) days after the hearing of this case on 31st October 2023.
7. THAT the Learned Magistrate erred in law by entertaining and hearing this case without jurisdiction to do so.
6. The appeal was canvassed through written submissions. The Appellant filed its submissions dated 23/06/2025 whilst the Respondent’s submissions are dated 01/07/2025.
Analysis and Determination.
7. This being an appeal from the Small Claims Court, the jurisdiction of the Court is circumscribed in section 38 of the Small Claims Court Act. Section 38 of the Small Claims Court Act provides as follows:
1. A person aggrieved by the decision or an order of the Court may appeal against that decision or an order to the High Court on matters of law.
2. An appeal from any decision or order referred to in sub section (1) shall be final.
8. The above provision means that this Court can only intervene if the evidence on record does not reasonably support the conclusions made by the trial court. More specifically, an appeal before this Court is essentially limited to points of law. Such points of law would include misapplication of statutory provisions; misdirection on evidence and errors in legal evaluation of facts as noted hereinbefore.
9. Amongst the grounds of appeal herein are that the Learned Adjudicator erred in law by failing to apply the provisions of the Law of Contract Act; failed by misinterpreting the contractual provisions in the agreement between the parties herein; and that she erred in law by delivering her Judgement without Jurisdiction to do so, more than three (3) days after the hearing of this case on 31/10/2023 which was without jurisdiction.
10. I have carefully read the Record of Appeal, the grounds of appeal and rival submissions by the parties’ counsel. In my view, the above grounds raise points of law hence the Appeal is competent and properly before the court. I will however summarize the Appellants’ grounds into two pertinent legal issues for determination in this appeal as follows:-
i. Whether delivery of the judgement more than three (3) days after the hearing of the claim was without jurisdiction;
ii. Whether this court should allow the appeal and set aside the trial court’s judgement;
i. Whether delivery of the judgement more than three (3) days after the hearing of the claim was without jurisdiction;
11. The Appellants submit that the Small Claims Court Act 2016 was established with the primary objective of enhancing access to justice through the expeditious resolution of disputes and placed reliance on Section 34 of the Small Claims Court Act, which provides for the expeditious disposal.
12. It is submitted that this legislative framework signals a clear intent for strict adherence to timelines, aiming to provide a swift and efficient judicial process. In the present case, the hearing in the Small Claims Court concluded on 31st October 2023. The judgment, however, was delivered significantly later, on 1st February 2024. This period spans over three months, specifically 92 days, between the hearing and the delivery of the judgment. The Appellant cited the case of Macharia v Wanjohi t/a Gitonyi Supplies Services (Commercial Case E245 OF 2023), where the court therein quoted the decision in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & Others (2012) eKLR
13. That in light of the foregoing, the Learned Magistrate did indeed err in law by failing to give her judgment within the mandatory timelines prescribed by Section 34 (1) and (2) of the Small Claims Act hence the Court’s jurisdiction had lapsed more than three (3) days after the hearing of this case.
14. On the other hand, the Respondent submits that the import of section 34 of the Small Claims Court Act is for the expeditious disposal of all proceedings and not to interfere with the discretion of the court as to the handling of proceedings. Whereas the Act provides for timelines, the court itself has the flexibility to render the judgment outside the stipulated timeline owing to fact that the said provision is directory and not mandatory. Hence every judgment delivered outside the three-day timeline of hearing are valid in the eyes of the law.
15. It is submitted that the phrase, ‘so far as is practicable in the circumstances’ as used in Section 34(1) of the Small Claims Court Act meant that where the circumstances rendered it impossible to deliver judgment within the 60- day period, then the judgment of the Small Claims Court would still be valid. From the proceedings in this matter, it is clearly evident that it is the Appellants (then Respondent) who occasioned the delay in the finalization of this matter. The Appellant was duly served however sat on his hands until when an Auctioneer was instructed to execute the default judgment entered. It is upon the execution that the Appellant’s filed an application to set aside the interlocutory judgement. It was not possible to deliver the judgment within the said 60 days from the date of filing the suit as the Appellant themselves contributed to the delay. The Appellant, having benefitted from the Adjudicator’s discretion that allowed them to file their response to the claim late and the interlocutory judgment entered against it set aside, cannot plead strict timelines when they are partly responsible for the delay in the disposal of the claim.
16. It is the Respondent’s position that whereas the afore-stated section is couched on mandatory terms, it does not vitiate any judgment delivered by courts after the said term.
17. Section 34 of the Small Claims Court Act provides as follows:-
“34. Expeditious disposal of cases
(1) All proceedings before the Court on any particular day so far as is practicable shall be heard and determined on the same day or on a day-to-day basis until final determination of the matter which shall be within sixty days from the date of filing the claim.
(2) Judgment given in determination of any claim shall be delivered on the same day and in any event, not later than three (3) days from the date of the hearing.”
18. As submitted by the Respondent, the import of Section 34 of the Act is for the expeditious disposal of all proceedings and not to interfere with the discretion of the court as to the handling of proceedings. Whereas the Act provides for timelines, the court itself has the flexibility to render the judgment outside the stipulated timeline owing to fact that the said provision is directory and not mandatory. Hence every judgment delivered outside the three-day timeline of hearing are valid in the eyes of the law.
19. The phrase, ‘so far as is practicable in the circumstances’ as used in Section 34(1) of the Small Claims Court Act meant that where the circumstances rendered it impossible to deliver judgment within the 60- day period, then the judgment of the Small Claims Court would still be valid.
20. From the proceedings in this matter, it is evident that the Appellants (then Respondent) to some extend occasioned the delay in the finalization of this matter. The Respondent’s were duly served with the Claim, however they failed to defend it until after when an Auctioneer was instructed to execute the default judgment entered against them.
21. It is following the execution that the Appellant’s filed an application to set aside the default judgement. It was not possible to thereafter hear the parties and deliver the judgment within the 60 days from the date of filing the suit. The Appellants, having benefitted from the Adjudicator’s discretion that allowed them to file their response to the claim late in the day and the interlocutory judgment entered against them set aside, cannot plead strict timelines when they are substantially responsible for the delay in the determination of the claim.
22. It is this court’s position that whereas the afore-stated section is couched in mandatory terms, it does not vitiate any judgment delivered by courts after the said period, the section does not give sanctions for any proceedings undertaken outside the statutory limit.
23. See the reasoning of Magare J in Biosystems Consultants versus Nyali Links Acarde (Civil Appeal E185 of 2003) 2023] KEHC 21068 (KLR) (31 July 2023) (Ruling) where the learned Judge held that:-
“The legislative intent of section 34 of the Small Claims Court Act was not to impose unnecessary bottlenecks. Even tax statutes had timelines for paying or declaring taxes. It was never that non-payment made those taxes void. There should be consequences. In the Income Tax Act, the non-compliance with deadlines did not vitiate the taxes. It attracted known penalties. What were the consequences under section 34 of the small claims court?… A purposive interpretation should be given to statutes so as to reveal the intention of the statute. The purpose of the Small Claims Court Act was to facilitate expeditious disposal of the disputes while at the same time respecting the right to be heard. The net result was that balancing the two may result at times to overshooting the 60 days. The 60 days did not have penal consequences for good reason. They were aspirational. That was part of having access to justice over amounts that needed not be in the normal system. Allowing the application would open floodgates that would eventually defeat the purpose of the Act.”
24. Similarly in the case of Crown Beverages Limited vs MFI Document Solutions Limited (Civil Appeal E833 of 2021) [2023] KEHC 58 (KLR) (Civ) (17 January 2023) (Judgment), Justice Majanja stated as follows: -
“Although section 34(2) of the SCCA is couched in mandatory terms, the court must look at the context of the provision in light of the guiding principles which include, inter alia, the timely disposal of all proceedings before the court using the least expensive method. The provision as to delivery of judgment is meant to be directory and not mandatory as it is not the intention of the SCCA to invalidate any proceedings that violate the statutory timelines. To adopt such a position would undermine the statutory objects and cause injustice to the parties as the case would have to be reheard.
The issue of breach of timelines for delivery of judgment is not a novel issue and has been dealt with by our courts in reference to order 21 rule 1 of the Civil Procedure Rules which provides that judgments must be delivered within 60 days upon conclusion of the hearing. In Nyagwoka Ogora alias Kennedy Kemoni Bwogora v Francis Osoro Maiko Civil Appeal No 271 of 2000 (UR) the Court of Appeal observed as follows: The real question is what is the consequence of non-compliance therewith? no doubt that rule is an important one in the expeditious dispensation of justice. And it is made to be obeyed. However, if non-compliance with the rule were to have the effect contended for by the appellant, we think the overall result would be more injustice than justice to the parties. A lot of time and resources spent in litigation would come to naught if judgments delivered after the expiry of 42 days were to be voided or declared void ipso facto. The rule cannot and in our view could not have been intended to deprive a trial judge of his jurisdiction to write and pronounce judgment in a case he has heard. In our considered view, while non-compliance with the rule and particularly persistent non-compliance or inordinate delay in compliance should call for censure of the judicial officer concerned from those in-charge of judicial administration, it should not be a ground for vitiating a duly delivered judgment.
Being of that persuasion we would reject ground 1 of appeal.11. There may be instances where the delay is inordinate and such delay prejudicial to the parties. In such cases, the court may set aside the judgment as was held by the Court of Appeal in Manchester Outfitters Services Limited and Another v Standard Chartered Financial Services Limited and Another [2002] eKLR. The appellant does not contend that the failure to deliver the judgment within the stipulated timelines was prejudicial or that the delay was inordinate. I therefore reject the appellant’s contention that the judgment is null and void.”
25. Lastly, in the case of Wekesa v Matata (Civil Appeal E685 of 2022) [2024] KEHC 8284 (KLR) (28 June 2024) (Judgment) Justice Njagi had this to say:-
“I take the view postulated in the latter case that non-compliance with the section is not fatal to a case. The court has to look into what the intention of the legislature was when it passed the section. I do not think that the legislature intended to mean that the court ceased to exercise jurisdiction over a matter filed in that court which was not finalized within 60 days. If that were the case, it would defeat the purpose of the whole Act. I thereby dismiss the argument that the judgment of the Adjudicator in this matter was a nullity”
26. Based on the above decisions, it’s my finding that the trial court/ Adjudicator had jurisdiction to deliver the judgment notwithstanding the timeline it was delivered under. The same is merited and proper. I find this ground of appeal to be lacking in merit and the same is disallowed.
ii. Whether this court should allow the appeal and set aside the trial court’s judgement;
27. The Appellant submits that Clause 3.5.1 of the contract dated 27th March 2019 (on extension of time) states as follows;
“As soon as the Builder recognizes that the work will not be finished in the time agreed upon, he/she shall inform the owner of the need for more time to complete the works and the reason for the request for the increased time”.
28. That the only remaining item was some steel frames and cladding for the Respondents’ greenhouse which was difficult to find in good time due to shortage of construction materials in the global market caused by Covid-19 pandemic which had caused great global panic in 2019 and 2020.
29. This information was conveyed to the Respondents vide the Email dated 19th June 2019 appearing at page 35 of the Record of Appeal. The Appellant had complied with clause 3.5.1 of the contract by explaining the circumstances that had caused delays as required by the contract.
30. The Appellant states that it was illegally evicted by the Respondent when it had already constructed the greenhouse where the only remaining part was a few steel frames and the cladding (the polythene covering) for the same which was left in the Respondents possession. The greenhouse was constructed and all other steel frames were put in place. Only the covering (cladding) remained and the Appellant was evicted from the plot before it could place the said cladding on the steel frames.
31. It was the Respondent's evidence that the other steel frames and cladding were difficult to find in good time due to shortage of construction materials in the global market caused by the onset of the Covid-19 pandemic which had caused great global panic in 2019 and 2020. This information was duly communicated to the Respondent as per the contract. After the Appellant had managed to obtain cladding for the greenhouse they were evicted. The Appellant had procured the materials and thus the Appellant does not owe anything to the Respondent as alleged or at all. Reliance was placed on the case of DORCA A. SITO V SOUTH NYANZA SUGAR CO. LTD [2018] eKLR.
32. The Appellant also submits that the pandemic was clearly an act of God which was beyond the Appellant’s control and that the challenges in finding the construction materials were communicated to the Respondents as per the contract in clause 3.5.1. Reference was made to the Supreme Court decision in KWANZA ESTATES LIMITED V JOMO KENYATTA UNIVERSITY OF AGRICULTURE AND TECHNOLOGY (PETITION E001 OF 2024) [2024] KESC 74 (KLR) (6 DECEMBER 2024) (JUDGMENT) quoted a decision by the Honourable Judge Ogola J where they stated that;-
“We find the decision in Pankaj Transport PVT Limited v SDV Transami Kenya Limited [2017] eKLR by the High Court (Ogola J) to be of persuasive value as it expounded the doctrine of force majeure quite aptly. The doctrine of force majeure has its origin in French law where there are express force majeure provisions in the French civil code which excuse contractual performance where events have happened outside the parties’ control which could not have been foreseen at the time of contracting and which could not have been avoided by appropriate measures. The doctrine of force majeure has expanded to include events caused by both human actions and natural occurrences, defining situations beyond the control of parties that prevent them from meeting contractual obligations. Further, the interpretation the courts give is dependent on the choice of wording and events delineated by the parties in their contract.”
33. The Appellant contends that the pandemic was a force majeure event that caused difficulties to everyone in the world. The Appellant's performance of the contract was reliant on the global market which was seriously affected by the pandemic that hit Kenya in March 2020. The Respondent frustrated the Appellant's execution of its part of the contract by having it evicted from the plot. It is the Appellant’s argument that the learned Magistrate erred in law by misinterpreting the contractual provisions in the agreement.
34. On this issue, the Respondent’s position is that the terms of the contract were binding on all the parties therein. As a matter of fact, Clause 13 of the said contract expressly stated that:-
“Each of the parties hereto agrees and confirm for the purpose of Law of Contract Act (Chapter 23 Laws of Kenya) that it has executed this agreement for sale with the intention to bind itself to the contents hereof”.
35. The court on the execution of contacts; in the case of International Aircraft Group SA vs Airway Kenya Aviation Limited [2020] eKLR stated as follows: -
“…Parties to a contract that they have entered voluntarily are bound by its terms and conditions.”
36. That the Appellant having executed the contract out of their free will, for all intents and purposes were bound to the said terms of the contract. They cannot turn around and seek refuge from this court in varying the terms of the contract. It is now a longstanding established principle of law, that parties to contract are bound by the terms and conditions thereof, and that it is not the business of courts to rewrite such contracts. This principle was espoused in the case of National Bank of Kenya Ltd vs. Pipe Plastic Samkolit (K) Ltd (2002) 2 E.A. 503, (2011) eKLR wherein the learned judges of the Court of Appeal at page 507 stated that: -
“A court of law cannot rewrite a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved.”
37. Further in the case of Pius Kimaiyo Langat vs. Co-operative Bank of Kenya Ltd (2017) eKLR the Court of Appeal held that: -
“We are alive to the hallowed legal maxim that it is not the business of Courts to rewrite contracts between parties, they are bound by the terms of their contracts, unless coercion, fraud or undue influence are pleaded and proved.”
38. From the foregoing, the Respondent at trial sufficiently satisfied the trial court that the Appellants breached the contract between the parties by going against the terms that they were bound to.
39. I have considered the contract dated 27/3/2019 made between CHETAN ARVINDMUMAR AMLANI (Owner) and DENKO PROPERTIES LIMITED (Builder) which is the subject of this matter and I note that Clause 3.5.1 of the contract provides for extension of time as follows;
“As soon as the Builder recognizes that the work will not be finished in the time agreed upon, he/she shall inform the owner of the need for more time to complete the works and the reason for the request for the increased time”.
40. The Appellant asserts that it requested the Respondent for extension of time vide the email dated 19th June 2019 appearing at page 35 of the Record of Appeal. I have keenly perused this particular email which is reproduced as follows:-
“Good Morning Chetan & team
Greetings from Greengro International. This is an update regarding the construction progress of your greenhouses at Greenhub Estate. For a few months now, we have been and still are experiencing delays in delivery of some steel frames from our major steel supplier apparently due to a countrywide shortage of some raw materials in the steel industry. Please find attached our most recent email communication with our supplier. The missing frames are crucial for the construction process to proceed since they form the arches for the roofing structure. However kindly note that we have procured and prepared all other construction materials and we just await these missing frames to proceed. According to our supplier, we anticipate to receive them by end of this month. We are currently at 40% completion but once we have the missing frames delivered on site it will take a maximum of 2 weeks to complete construction of your greenhouse(s) and transplant the seedlings into the greenhouse. We sincerely apologize for this delay and appreciate your understanding that it is beyond our control. Thank you for your continued support.
Best Regards,”
41. Also, the email only talks of the reason for the delay in completing the construction which was attributed to the missing frames and it does not at all seek for extension of time. As I understand the email, Greengro International according to their supplier anticipated to receive the missing frames by end of that month. They were currently at 40% completion but once they got the missing frames delivered on site it would take a maximum of 2 weeks to complete construction of the Respondent’s greenhouse(s) and transplant the seedlings into the greenhouse.
42. At paragraph 9 of the Response to Claim dated 6th September 2023, the Appellant stated that the Claimant (Respondent herein) frustrated the Appellant’s execution of it’s part of the contract whereas another company known as Green Gro International Limited was also evicted from the Respondent’s plot where it had planted crops in a joint venture with the Respondent.
43. With the above, Green Gro International Limited was a completely different company from the Appellant. Clearly, there is no doubt that the email is from Greengro International and not Denko Properties Limited, the Appellant herein. I am struggling to understand how Greengro International is appearing in the email addressing the Respondent on a contract it is not a party to and not the Appellant herein. In the absence of any evidence on the trial court’s record on any relationship between the two companies. Therefore, I find the said email to be misplaced.
44. Taking all the matters into consideration, I am convinced that somehow the Appellant did some part of the construction although the same was not completed within the agreed time. None of the parties adduced any evidence on how far the construction had been done. Only at paragraph 15 of the Appellant’s submissions dated 9th November 2023 filed at the trial court, the Appellant submitted that the steel frame was 85% done and the covering was only 15% which was to be completed save for the challenge experienced in sourcing for the materials. The Appellant did not adduce evidence including photographs of the work so far done. This court is aware that submissions cannot take the place of evidence and will not rely on the approximated percentage of the work done as submitted by the Appellant at the trial court.
45. Furthermore, the Respondent was silent on the progress of work done by the Appellant at the time of termination of the contract herein. In fact, in cross examination, the Respondent confirmed that arches and few poles were installed (at page 13 of the trial court’s proceedings).
46. Based on the above analysis, this court is of the considered view that the trial court ought not to have awarded the Respondent the entire Kshs.650,000/= taking into account that fact that the Respondent agreed that the Appellant had done part of the work. In the circumstances and in applying the principle of justice and fairness in this matter, I therefore find that the Appellant is entitled to a refund of 70% only of the agreed amount of Kshs.650,000/= for the uncompleted construction which is Kshs.455,000/= plus costs and interest at the Small Claims Court.
47. In the premises, the appeal partly succeeds and I make the following orders that:
a. The trial court’s Magistrate/Adjudicator had jurisdiction to deliver the judgment notwithstanding the timeline it was delivered under. The same is merited and proper.
b. The Appellant shall refund the Respondent Kshs.455,000/= plus costs and interest of the Small Claims Court.
c. Each party to bear their own costs of the Appeal.
d. There shall be a stay of execution of 30 days.
It is so ordered. This file is closed.
JUDGMENT DATED & SIGNED AT MACHAKOS THIS 28TH JULY 2026
NOEL. I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 28TH JULY 2026