BACKGROUND
1 The Appellant filed the instant appeal challenging the ruling of the Resident Magistrate Hon. Chepchumba Carolyne Rono (adjudicator )delivered on February 6, 2024, in Small Claims Commercial Case No. E012 of 2024. The ruling struck out the Appellant's claim on the grounds of lack of jurisdiction. The Appellant contends that the trial magistrate erred in law by raising the issue of jurisdiction suo moto without granting the Appellant an opportunity to be heard, thereby violating Article 50 of the Constitution of Kenya, 2010. The Appellant further argues that the trial magistrate misapplied legal principles, particularly those established in the case of Christofferson v Kavneet Sehmi t/a The Random Shop (Civil Appeal E036 of 2022), and wrongfully relied on Section 13(5) of the Small Claims Court Act.
2. The respondent did not participate in this appeal and thus its is not challenged. However this court being a first appellate court still has a duty to still has a duty to re-evaluate the impugned ruling and draw it’s own conclusions.
ISSUES FOR DETERMINATION T
3. The following issues arise for determination:
a. Whether the Appellant was accorded a fair hearing on the issue of jurisdiction.
b. Whether the principles in Christofferson v Kavneet Sehmi t/a The Random Shop (Civil Appeal E036 of 2022) were misapplied.
c. Whether the Small Claims Court had jurisdiction to hear and determine the matter.
ANALYSIS
Whether the Appellant was accorded a fair hearing on the issue of jurisdiction
4. Article 50 of the Constitution of Kenya, 2010 guarantees every person the right to a fair hearing. The principle of natural justice, particularly audi alteram partem (the right to be heard), is fundamental in ensuring fairness in judicial proceedings. The Appellant contends that the trial magistrate raised the issue of jurisdiction during the delivery of the ruling without prior notice or an opportunity for the parties to address the court on the matter. The certified proceedings confirm that the issue of jurisdiction was not raised during the hearing or in the submission s filed in court. The trial magistrate raised the issue suo moto during the delivery of the ruling, which deprived the Appellant of the opportunity to address the court on this critical matter. The High Court has previously held in Kenya Ports Authority v Modern Holding [EA] Limited (Civil Appeal No. 108 of 2016) that jurisdiction is a fundamental issue that can be raised at any stage, including by the court itself. However, when the court raises the issue suo moto, it must provide the parties an opportunity to be heard. Failure to do so constitutes a violation of the principles of natural justice. In light of the above, this court finds that the Appellant was not accorded a fair hearing on the issue of jurisdiction, and the trial magistrate's ruling is therefore procedurally flawed.
2 Whether the principles in Christofferson v Kavneet Sehmi t/a The Random Shop (Civil Appeal E036 of 2022) were misapplied
5. The trial magistrate relied on the case of Christofferson v Kavneet Sehmi t/a The Random Shop to conclude that the Small Claims Court lacked jurisdiction over the matter. However, the facts of the present case differ significantly from those in the said Christofferson case . In the said Christofferson case , the claim involved rent arrears arising from a landlord-tenant relationship, which was found to be outside the jurisdiction of the Small Claims Court. In the instant case, the Appellant's claim is based on an oral agreement for the construction of rental structures, with the Appellant entitled to proceeds from five rental units as compensation for his investment. The Appellant and Respondent did not have a landlord-tenant relationship, and the term "rent" in the pleadings referred to the agreed proceeds from the rental units, not rent arrears. The Appellant's claim is rooted in the enforcement of a lawful agreement and the principle of restitution, which seeks to restore the non-breaching party to their pre-contractual position. The application of the Christofferson case to the present matter was therefore erroneous.
Whether the Small Claims Court had jurisdiction to hear and determine the matter
6. Section 12 of the Small Claims Court Act, Cap. 10A, outlines the jurisdiction of the Small Claims Court, which includes civil claims relating to contracts for the sale and supply of goods or services, contracts relating to money held and received, liability in tort, compensation for personal injuries, and set-off and counterclaims under any contract. The Appellant's claim, as outlined in the Statement of Claim dated January 16, 2024, is for Kshs. 999,999, which represents the amount invested in constructing rental structures under an oral agreement with the Respondent. This claim falls within the scope of a contract relating to money held and received, as defined under Section 12 of the Small Claims Court Act. The trial magistrate's reliance on Section 13(5) of the Small Claims Court Act to conclude that the matter involved land ownership and management was misplaced. The Appellant's claim does not seek to determine ownership of the Respondent's property but rather seeks enforcement of the oral agreement and restitution for the breach of contract. This court finds that the Small Claims Court has the requisite jurisdiction to hear and determine the matter.
CONCLUSION
7. In light of the foregoing analysis, this court finds that:
i. The Appellant was not accorded a fair hearing on the issue of jurisdiction, resulting in a violation of the principles of natural justice.
ii. The trial magistrate misapplied the principles in the case of Christofferson v Kavneet Sehmi t/a The Random Shop (Civil Appeal E036 of 2022) to the present case.
iii. The Small Claims Court had jurisdiction to hear and determine the matter under Section 12 of the Small Claims Court Act.
ORDERS
8. I proceed to issue the following orders :
a. The appeal is hereby allowed.
b. The ruling of Hon. Chepchumba Carolyne Rono (Adjudicator )delivered on February 6, 2024, in Small Claims Commercial Case No. E012 of 2024 is set aside.
c. The Kisii Small Claims Court hereby is re- allocated to Hon Cheruiyot (Adjudicator ) for hearing and determination on merits. Mention on 17.2.26 for directions.
d. Each party to bear it’s own costs .
T,.A ODERA
JUDGE
9.2.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON KISII THIS _9th __ DAY OF __FEBRUARY _, 2026.IN THE PRESENCE OF CA- MR KIPCHIRCHIR & MR FOR OMANDI THE APPELLANT . NO APPEARANCE FOR THE RESPONDENT
1 The Appellant filed the instant appeal challenging the ruling of the Resident Magistrate Hon. Chepchumba Carolyne Rono (adjudicator )delivered on February 6, 2024, in Small Claims Commercial Case No. E012 of 2024. The ruling struck out the Appellant's claim on the grounds of lack of jurisdiction. The Appellant contends that the trial magistrate erred in law by raising the issue of jurisdiction suo moto without granting the Appellant an opportunity to be heard, thereby violating Article 50 of the Constitution of Kenya, 2010. The Appellant further argues that the trial magistrate misapplied legal principles, particularly those established in the case of Christofferson v Kavneet Sehmi t/a The Random Shop (Civil Appeal E036 of 2022), and wrongfully relied on Section 13(5) of the Small Claims Court Act.
2. The respondent did not participate in this appeal and thus its is not challenged. However this court being a first appellate court still has a duty to still has a duty to re-evaluate the impugned ruling and draw it’s own conclusions.
ISSUES FOR DETERMINATION T
3. The following issues arise for determination:
a. Whether the Appellant was accorded a fair hearing on the issue of jurisdiction.
b. Whether the principles in Christofferson v Kavneet Sehmi t/a The Random Shop (Civil Appeal E036 of 2022) were misapplied.
c. Whether the Small Claims Court had jurisdiction to hear and determine the matter.
ANALYSIS
Whether the Appellant was accorded a fair hearing on the issue of jurisdiction
4. Article 50 of the Constitution of Kenya, 2010 guarantees every person the right to a fair hearing. The principle of natural justice, particularly audi alteram partem (the right to be heard), is fundamental in ensuring fairness in judicial proceedings. The Appellant contends that the trial magistrate raised the issue of jurisdiction during the delivery of the ruling without prior notice or an opportunity for the parties to address the court on the matter. The certified proceedings confirm that the issue of jurisdiction was not raised during the hearing or in the submission s filed in court. The trial magistrate raised the issue suo moto during the delivery of the ruling, which deprived the Appellant of the opportunity to address the court on this critical matter. The High Court has previously held in Kenya Ports Authority v Modern Holding [EA] Limited (Civil Appeal No. 108 of 2016) that jurisdiction is a fundamental issue that can be raised at any stage, including by the court itself. However, when the court raises the issue suo moto, it must provide the parties an opportunity to be heard. Failure to do so constitutes a violation of the principles of natural justice. In light of the above, this court finds that the Appellant was not accorded a fair hearing on the issue of jurisdiction, and the trial magistrate's ruling is therefore procedurally flawed.
2 Whether the principles in Christofferson v Kavneet Sehmi t/a The Random Shop (Civil Appeal E036 of 2022) were misapplied
5. The trial magistrate relied on the case of Christofferson v Kavneet Sehmi t/a The Random Shop to conclude that the Small Claims Court lacked jurisdiction over the matter. However, the facts of the present case differ significantly from those in the said Christofferson case . In the said Christofferson case , the claim involved rent arrears arising from a landlord-tenant relationship, which was found to be outside the jurisdiction of the Small Claims Court. In the instant case, the Appellant's claim is based on an oral agreement for the construction of rental structures, with the Appellant entitled to proceeds from five rental units as compensation for his investment. The Appellant and Respondent did not have a landlord-tenant relationship, and the term "rent" in the pleadings referred to the agreed proceeds from the rental units, not rent arrears. The Appellant's claim is rooted in the enforcement of a lawful agreement and the principle of restitution, which seeks to restore the non-breaching party to their pre-contractual position. The application of the Christofferson case to the present matter was therefore erroneous.
Whether the Small Claims Court had jurisdiction to hear and determine the matter
6. Section 12 of the Small Claims Court Act, Cap. 10A, outlines the jurisdiction of the Small Claims Court, which includes civil claims relating to contracts for the sale and supply of goods or services, contracts relating to money held and received, liability in tort, compensation for personal injuries, and set-off and counterclaims under any contract. The Appellant's claim, as outlined in the Statement of Claim dated January 16, 2024, is for Kshs. 999,999, which represents the amount invested in constructing rental structures under an oral agreement with the Respondent. This claim falls within the scope of a contract relating to money held and received, as defined under Section 12 of the Small Claims Court Act. The trial magistrate's reliance on Section 13(5) of the Small Claims Court Act to conclude that the matter involved land ownership and management was misplaced. The Appellant's claim does not seek to determine ownership of the Respondent's property but rather seeks enforcement of the oral agreement and restitution for the breach of contract. This court finds that the Small Claims Court has the requisite jurisdiction to hear and determine the matter.
CONCLUSION
7. In light of the foregoing analysis, this court finds that:
i. The Appellant was not accorded a fair hearing on the issue of jurisdiction, resulting in a violation of the principles of natural justice.
ii. The trial magistrate misapplied the principles in the case of Christofferson v Kavneet Sehmi t/a The Random Shop (Civil Appeal E036 of 2022) to the present case.
iii. The Small Claims Court had jurisdiction to hear and determine the matter under Section 12 of the Small Claims Court Act.
ORDERS
8. I proceed to issue the following orders :
a. The appeal is hereby allowed.
b. The ruling of Hon. Chepchumba Carolyne Rono (Adjudicator )delivered on February 6, 2024, in Small Claims Commercial Case No. E012 of 2024 is set aside.
c. The Kisii Small Claims Court hereby is re- allocated to Hon Cheruiyot (Adjudicator ) for hearing and determination on merits. Mention on 17.2.26 for directions.
d. Each party to bear it’s own costs .
T,.A ODERA
JUDGE
9.2.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON KISII THIS _9th __ DAY OF __FEBRUARY _, 2026.IN THE PRESENCE OF CA- MR KIPCHIRCHIR & MR FOR OMANDI THE APPELLANT . NO APPEARANCE FOR THE RESPONDENT