Introduction
1. This is an appeal of the Judgment of the lower Court delivered on 6th June 2023, in Milimani Small Claim Court Comm Suit No. E7797/2022 in which the court allowed the Respondent’s Claim for breach of contract against the Appellant.
2. The brief background of this matter is that by a Statement of Claim dated 8th December 2022, the Respondent sued the Appellant seeking judgment in the sum of Kshs. 500, 000, being damages for breach of contract, interest on the aforementioned at court rates, and costs of the claim. The Claim was based on an Agreement for works done by the Respondent to the Appellant.
3. In response, the Respondent filed a Reply to Statement of Claim dated 24th January 2023, denying the averment that it owed the Appellant any money, and sought the dismissal of the suit with costs.
4. On 6th June 2023, the lower court delivered its judgment, and allowed the Claim, thereby awarding the Respondent damages in the sum of Kshs. 500, 000 plus costs and interest at court rates from the date of filing suit.
5. Aggrieved by the lower court’s judgment, the Appellant lodged an appeal to this court, vide its memorandum of appeal dated 11th November 2022, raising the following five grounds;
a. That the learned magistrate/adjudicator erred in law by failing to appreciate that the jurisdiction of the trial court was time bound that ran out and ceased by effluxion of time on 30th November 2022
b. That the learned magistrate erred in law in failing to consider the legal fact that the judgment rendered and returned outside time was without jurisdiction, therefore a nullity
c. That the learned magistrate erred in law, by failing to consider, appreciate and take into account, the Respondent’s Response to the Statement of Claim, evidence adduced at the hearing, and submissions filed together with the supporting authorities to determine the matter, thus arriving at a perverse decision
d. That the learned magistrate erred in law, by shifting the burden of proof to the Appellant
e. That the learned magistrate erred in law, by awarding the Claimant Ksh. 500, 000, which was unjustified.
6. The appeal was canvassed by way of submissions. The Appellant’s submissions are dated 15th October 2024, whereas the Respondent’s submissions are dated 12th November 2024.
7. From the above grounds and the submissions, I understand the appellant to be faulting the trial court for delivering judgment beyond the statutory period and failing to consider the Respondent’s Response to the Statement of Claim and evidence adduced at the hearing.
8. According to the appellant, the trial court had no jurisdiction to deliver judgment after the statutory 60 days. Section 34(1) and (2) of the Small Claims Act provides that;
(1) All proceedings before the Court on any particular day so far as is practical 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.
9. From the above, it is evident that Section 34 of the Act does not prescribe the consequences of failing to deliver the judgment within the stipulated sixty days or within three days upon conclusion of the hearing. The appellant argues that once this period is over, the court’s jurisdiction over the matter ceases by effluxion of time and that a decision made outside the stipulated timelines is bereft of any legal force. This cannot in law be the correct position.
10. The position of this court is that statutes must be interpreted purposively and, in a manner, to give effect to the objective of the Act. This is the guidance under Article 259 of the Constitution. It is further the view of this court that the right to access of justice under Article 48 of the Constitution precedes the filing of a suit and transcends the delivery of judgment. Consequently, any interpretation of the Act which has the effect of unreasonably limiting a party’s access to justice must at all times be avoided. In any event, the Respondent herein had no control of the period within which the judgment was to be delivered, it was purely within the purview of the trial court. Further, the Appellant has not demonstrated any real prejudice suffered by the delivery of the judgment beyond the 60 days timeline.
11. It is critical to note that the enactment of the Small Claims Court Act was informed by the need to decongest the courts of the heavy backlog and the need to give parties who had small claims quick access to justice through delivery of timely decisions. I agree with the decision of Justice Kizito Magare in the case of Biosystems Consultants v Nyali Links Arcade (2023) KEHC 21068 (KLR) where the Court held as follows;
“The purpose of the Small Claims Courts Act is to facilitate expeditious disposal of the disputes while at the same time respecting the right to be heard. The net result is that balancing the two may result at times to overshooting the 60 days. The 60 days do not have the penal consequences for good reasons. They are aspirational. This is part of having access to justice over amounts that need not be in the normal system. Allowing the application will open floodgates that will eventually defeat the purpose of the Act.
It is my take that the non-compliance goes to the court’s performance and is answerable internally. It cannot affect parties who are in court and ready to be heard. I have seen defendants use various gimmicks to have matters adjourned and thereafter turn around to say, 60 days are over.”
12. In the premises, this court is of the view that would be a travesty of justice and unconstitutional to take a position that a party who has approached the court in the right way and prosecuted their case within the confines of the law should be punished, merely because the court failed to deliver judgment within the stipulated times. This ground of appeal therefore fails.
13. Regarding the Appellant’s second limb of appeal that the trial magistrate erred by failing to take into account the evidence by the Appellant that the Respondent abandoned the project/works midway, despite having been paid by the Appellant a sum of Kshs. 300,000/-, leaving only a balance of Kshs. 200,000/-, I am of the view that this is purely factual which is not within the purview of this court in its appellate capacity, pursuant to Section 38(1) of the Small Claims Courts Act.
14. The Appellant’s third limb of appeal is that the adjudicator erred in shifting the burden of proof from the Respondent to the Appellant when the trial court stated that the Appellant had the burden of proving that a partial payment of Kshs. 300,000/- had been made to the Respondent. I have perused the record of appeal and in particular the evidence adduced at the hearing.
15. It is a principle of law that whoever lays a claim before the court against another has the burden to prove it. Sections 107 and 108 of the Evidence Act provide as follows: -
(107) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
(108) the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
16. The burden of proof was discussed in the case of Muriungi Kanoru Jeremiah vs Stephen Ungu M’mwarabua [2015] eKLR where the court held as follows: -
“As I have already stated, in law, the burden of proving the claim was the appellant’s including the allegation that the respondent did not pay the sum claimed as agreed; i.e. into the account as provided….The trial magistrate was absolutely correct in so holding and did not shift any legal burden to the appellant…The appellant was obliged in law to prove that allegation; after the legal adage that he who asserts or alleges must prove……In the circumstances of this case, the respondent bore no burden of proof whatsoever in relation to the debt claimed. By way of speaking, the shifting of burden of proof would have arisen had the trial court magistrate held that the respondent bore burden to prove that he deposited the sum of Kshs. 98,200/- the debt being claimed herein.
17. Similarly, in the Halsbury’s Laws of England, 4th edition, Volume 17 at paras 13 and 14:-
“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he had failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues.
The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence.”
18. In the instant case, I note from the proceedings that the Respondent’s witness (Mandeep Singh) testified on 27th April 2023 and informed the court that the contract was for a sum of Kshs. 2.1 million, which the Appellant paid leaving a balance of Kshs. 500,000/-. The witness further told the court that the Appellant issued the Respondent with a cheque of Kshs. 500,000/- which bounced due to lack of sufficient funds.
19. The Appellant in response to the claim did not deny the existence of the contract between them and the Respondent. The Appellant’s witness (Mr. Shakir Ibrahim Hassan) told court that out of the Kshs. 500,000/- that was being claimed by the Respondent, they had in fact paid Kshs. 300,000/- in cash to Mr. Mandeep and that the only sum then outstanding was Kshs. 200,000/-. In support of his evidence, the Appellant’s witness produced an ETR receipt.
20. Upon careful review of the evidence, I agree with the trial court that having alleged that part payment had been made to the Respondent, the burden was on the Appellant to adduce sufficient evidence that the payment was actually made. The evidential burden had then shifted to the Appellant.
21. Consequently, this court finds that the trial court did not unlawfully shift the burden of proof to the Appellant as alleged in the memorandum of appeal. As to whether the ETR receipt produced by the appellant at trial was evidence of payment, that is a question of fact, which is not for this court, exercising its appellate jurisdiction.
22. Accordingly, this Court finds this Appeal unmeritorious and the same is hereby dismissed with costs to the Respondent.
23. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT
THIS 20TH DAY OF MARCH 2025
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant.