'1. Through a Notice of Motion application dated 25th February 2025 brought under the provisions of Articles 47, 48, 50, 159(2), 165(3)(e) & 259 of the Constitution of Kenya, 2010, Sections 1A, 1B, 3 & 3A, of the Civil Procedure Act, Order 42 Rule 27 of the Civil Procedure Rules, 2010, Sections 3 & 25 of the High Court (Organization and Administration) Act, 2015, and all enabling provisions of the law, the appellant seeks an order for leave to adduce additional evidence as annexed in the supporting affidavit to form part of the Record of Appeal, or an/order for this Honourable Court take the additional evidence.
2. The application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on the same day by Mr. Friday Kinara King’oina, the appellant herein. Mr. King’oina averred that the proposed evidence is material to the determination of issues relating to matrimonial property, marital status, and the jurisdiction of the Small Claims Court and that the evidence has arisen from recent developments occasioned by the respondent’s conduct. He stated that the dispute between the parties herein stems from their failed union and that during the pendency of the proceedings, the respondent has on several occasions presented herself to third parties as his wife, including in criminal proceedings arising from the same impugned sale agreements. He relied on witness statements recorded in Kibera Criminal Case No. MCCR/E831/2024, in which two witnesses stated that they knew the respondent as his wife and that the parties transacted as a family. He further stated that the respondent is a state witness in that matter.
3. Mr. King’oina deposed that the respondent took possession of motor vehicle registration No. KCN 521N, a vehicle he had already sold to a third party with her knowledge and participation, and that she benefited from the sale transaction by completing payment while holding herself out as his wife. He asserted that having enjoyed benefits of the impugned agreements, the respondent cannot challenge their validity. He claimed that the parties herein cohabited as husband and wife, giving rise to a presumption of marriage, and further claimed that they are married under Gusii customary law. He maintained that the Small Claims Court lacked jurisdiction to determine issues of marriage, customary law, or matrimonial property, which issues form the basis of the dispute between the parties herein. Mr. King’oina contended that the additional evidence is necessary to enable the Court to reach a fair and just determination, failing which he will be denied a fair hearing. He asserted that the instant application has been brought without delay and that the respondent will not suffer prejudice in the event that the order being sought is granted, as she retains the opportunity to rebut the evidence.
4. In opposition to the application, the respondent filed a replying affidavit sworn on 23rd April 2025 by Ms. Laura Bagwasi, the respondent herein. She averred that the affidavit in support of the instant application is based on misrepresentations and material non-disclosure. She deposed that the Trial Court dismissed the appellant’s Preliminary Objection for lack of merits for reasons that the grounds raised therein were improper and did not meet the threshold of a Preliminary Objection. She asserted that the appellant elected to challenge the Court’s jurisdiction through a Preliminary Objection, which is confined to pure points of law, and cannot now introduce new factual evidence contrary to the principles governing Preliminary Objections.
5. Ms Bagwasi asserted that the Appeal specifically challenges the dismissal of the appellant’s Preliminary Objection and the appellant cannot use the instant application to cure the defects of his earlier procedural choice. She contended that the application herein improperly seeks to invite this Court, which is an appellate Court, to interrogate facts and exercise discretion on issues that should not have arisen within the context of a Preliminary Objection. She contended that entertaining the application herein would undermine the rule of law, delay the determination of the matter before the Small Claims Court and unjustly prejudice her by denying her property rights guaranteed under Article 40 of the Constitution.
6. In a rejoinder, the appellant filed a further affidavit sworn on 30th June 2025 by Mr. Friday Kinara King’oina, the appellant herein. He deposed that the respondent did not rebut the substantive merits of the application herein and maintained that the evidential records from the criminal matter are critical for a fair determination of this Appeal. He contended that the respondent’s denials are vague, evasive and fail to demonstrate any prejudice that would result from admitting the proposed evidence. He further asserted that the respondent did not provide any legal basis to justify excluding the evidence, rendering her opposition ineffective.
7. Mr. King’oina averred that the respondent’s replying affidavit improperly seeks to address the merits of the substantive appeal, whereas the application herein concerns only whether leave should be granted to introduce additional material evidence. He asserted that the evidence relates to issues already within the respondent’s knowledge. He reiterated that the Small Claims Court lacked jurisdiction to determine matters touching on the parties’ marital status and stated that once the proposed evidence is admitted, it will demonstrate that the Trial Court acted ultra vires. Mr. King’oina maintained that the additional evidence arises directly from the respondent’s conduct and is essential to the just resolution of this Appeal.
8. The application herein was canvassed by way of written submissions. The appellant’s submissions were filed on 9th July 2025 by the law firm of Sang Cherongis Law Advocates LLP, while the respondent’s submissions were filed on 13th August 2025 by the law firm of ROM Law Advocates, LLP.
9. Mr. Sang, learned Counsel for the appellant relied on the principles governing admission of additional evidence on Appeal as set out by the Supreme Court in the case of Mohamed Abdi Mohamed v Ahmed Abdullahi Mohamed & 3 others [2018] (Petition 7 and 9 of 2018) (Consolidated) KESC 62 (KLR), and submitted that the instant application satisfies the applicable criteria. He argued that the evidence sought to be introduced is directly relevant to the issues on Appeal, particularly the parties’ marital status and the characterization of the subject motor vehicles as matrimonial property. He contended that the proposed evidence would materially assist the Court in determining whether the Small Claims Court had jurisdiction to adjudicate matters that in his view, fall within the exclusive domain of matrimonial or family law.
10. It was stated by Counsel that the evidence sought to be introduced could not have been produced before the Small Claims Court because the events giving rise to it, including the respondent’s alleged unauthorized seizure of motor vehicle registration No. KCM 067W, her representations to third parties as his wife and the subsequent criminal complaint lodged by the third-party purchaser, arose after the filing of the suit before the Small Claims Court. He further stated that the criminal proceedings in the Kibera Criminal Case in which two witnesses stated that the parties herein transacted as a couple and in which the respondent is a state witness, generate material records that directly bear on the jurisdictional question. He maintained that the additional evidence removes vagueness, strengthens the grounds of Appeal and establishes a presumption of marriage relevant to determining whether the Trial Court acted ultra vires.
11. Ms Waithegeni, learned Counsel for the respondent submitted that the nature of this Appeal, arising from a Ruling on a preliminary point, does not permit the introduction of new evidence, since a Preliminary Objection must be founded strictly on pure points of law based on the assumption that all pleaded facts are correct. She stated that the Trial Court dismissed the appellant’s Preliminary Objection precisely because it invited factual inquiry into the parties’ alleged marital status, contrary to the principles articulated by the Court in the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] E.A. 696.
12. Counsel asserted that the appellant has not satisfied the statutory and judicial criteria for admission of additional evidence as provided for under Section 78 of the Civil Procedure Act, Order 42 Rules 27-29 of the Civil Procedure Rules, 2010, or the principles as set out by the Supreme Court in the case of Mohamed Abdi Mohamed v Ahmed Abdullahi Mohamed & 3 others (supra). She argued that the appellant has not shown that the lower Court declined to admit relevant evidence, that the appellate Court requires the evidence to pronounce its judgment, or that substantial cause exists to justify its introduction. She contended that given that the substantive issues before the Small Claims Court remain undetermined, the appellant retains the opportunity to raise any factual matters, including evidence of marriage or ownership, at the trial level through appropriate procedures.
13. In submitting that additional evidence on Appeal cannot be used to patch up deficiencies in a Preliminary Objection or delay proceedings, Ms Waithegeni referred to the case of Njenga v Ruto (Environment and Land Appeal E023 of 2023) [2025] KEELC 5334 (KLR). She cited the case of Reliance Bank Limited v Norlake Investments Limited [2002] 1 E.A. 227, and stated that dismissal of the instant application will not render this Appeal nugatory, as the appellant will still be able to canvass all factual issues before the Trial Court. She argued that the appellant cannot claim prejudice arising from the consequences of his own decision to proceed by way of a Preliminary Objection rather than presenting evidence.
ANALYSIS AND DETERMINATION.
14. I have considered the application herein, the grounds on the face of it and the affidavits filed in support thereof. I have also considered the replying affidavit by the respondent and the written submissions by Counsel for the appellant and the respondent. The issue that arises for determination is whether the instant application is merited.
15. The instant application seeks leave of the Court to allow the appellant to introduce additional evidence at the appellate stage. The appellate Court’s discretion to grant such leave is conferred by Section 78(1) of the Civil Procedure Act, which provides that –
1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power: -
a) To determine a case finally;
b) To remand a case;
c) To frame issues and refer them for trial;
d) To take additional evidence or to require the evidence to be taken.
16. The above provisions are further compounded by the provisions of Order 42 Rule 27 of the Civil Procedure Rules, 2010, which states that -
1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the court to which the appeal is preferred; but if –
a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; or
b) the court to which the appeal is preferred requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,
the court to which the appeal is preferred may allow such evidence or document to be produced, or witness to be examined.
2) Wherever additional evidence is allowed to be produced by the court to which the appeal is preferred the court shall record the reason for its admission.
17. In the oft cited Supreme Court case of Mohamed Abdi Mohamed v Ahmed Abdullahi Mohamed & 3 others (supra), the said Court set out the governing principles of allowing additional evidence as follows -
We therefore lay down the governing principles on allowing additional evidence in appellate courts in Kenya as follows:
a) The additional evidence must be directly relevant to the matter before the court and be in the interest of justice;
b) It must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive;
c) it is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;
d) Where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit;
e) The evidence must be credible in the sense that it is capable of belief;
f) The additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;
g) Whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process;
h) Where the additional evidence discloses a strong prima facie case of wilful deception of the Court;
i) The Court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The Court must find the further evidence needful.
j) A party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case.
k) The court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.
18. It is undisputed that this Appeal arises from the dismissal of the appellant’s Preliminary Objection by the Small Claims Court. It is trite law that in order for a Preliminary Objection to succeed, it should raise a pure point of law, it should be argued on the assumption that all the facts pleaded by the other side are correct, and it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. This position was affirmed by the Court of Appeal in the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (supra).
19. In determining whether this Appeal is merited, this Court shall ascertain whether the Trial Court correctly determined the legal issues raised in the appellant’s Preliminary Objection, which significantly narrows the relevance and admissibility of new factual evidence at the appellate stage. From the appellant’s replying and further affidavits, it is evident that he seeks to introduce evidence relating to the parties’ alleged marital relationship, cohabitation, presumption of marriage and the respondent’s conduct in criminal proceedings. He contended that this material is necessary to show that the dispute between the parties herein involved questions of matrimonial property and marital status that the Small Claims Court lacked jurisdiction to entertain.
20. The record however shows that the appellant opted to raise the issue of jurisdiction through a Preliminary Objection, which must be argued and determined on undisputed facts. The jurisdictional question before the Trial Court, and now before this Court on Appeal, is therefore limited to whether the Small Claims Court lacked jurisdiction based on the facts as pleaded and the applicable law, not on new evidence that was not before the Trial Court. Introducing new factual issues at this stage would effectively convert a jurisdictional objection into a factual inquiry, contrary to established principles governing Preliminary Objections.
21. In addition, it is trite law that pursuant to the provisions of the Small Claims Court Act, Appeals from decisions of the Small Claims Court to the High Court are on matters of law.
22. This Court notes that the appellant has also not demonstrated that the evidence sought to be introduced could not, with reasonable diligence, have been obtained earlier. The said evidence which includes witness statements from criminal proceedings, allegations of cohabitation and issues concerning the sale of the motor vehicle relates to facts which were well within the appellant’s knowledge prior to arguing the Preliminary Objection at the Small Claims Court. It is my finding that granting the orders being sought herein would prejudice the respondent by requiring this Court to consider contested factual matters that were neither before nor determined by the Trial Court, thereby transforming an Appeal on a point of law into a de facto rehearing of the merits, contrary to the provisions of Order 42 Rule 27 of the Civil Procedure Rules, 2010, and the procedural mandate of appellate Courts.
23. This Court finds that whether the parties herein were married or cohabiting, or whether the respondent benefited from the motor vehicle sale, are matters of factual controversy, thus they cannot be admitted as additional evidence on Appeal against the dismissal of a Preliminary Objection. This Court further finds that even if the said evidence was to be admitted, it would have no probative value in this Appeal, which concerns only the dismissal of the Preliminary Objection and is governed by the Small Claims Court Act.
24. This Court is satisfied that the appellant has not met the stringent threshold for admission of additional evidence on Appeal.
25. The upshot is that the instant application is not merited and it is hereby dismissed with costs to the respondent.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 14th day of November 2025. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:-
Mr. Kipkemoi Sang for the applicant/appellant
Ms Daisy for respondent
Ms B. Wokabi – Court Assistant.
'
2. The application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on the same day by Mr. Friday Kinara King’oina, the appellant herein. Mr. King’oina averred that the proposed evidence is material to the determination of issues relating to matrimonial property, marital status, and the jurisdiction of the Small Claims Court and that the evidence has arisen from recent developments occasioned by the respondent’s conduct. He stated that the dispute between the parties herein stems from their failed union and that during the pendency of the proceedings, the respondent has on several occasions presented herself to third parties as his wife, including in criminal proceedings arising from the same impugned sale agreements. He relied on witness statements recorded in Kibera Criminal Case No. MCCR/E831/2024, in which two witnesses stated that they knew the respondent as his wife and that the parties transacted as a family. He further stated that the respondent is a state witness in that matter.
3. Mr. King’oina deposed that the respondent took possession of motor vehicle registration No. KCN 521N, a vehicle he had already sold to a third party with her knowledge and participation, and that she benefited from the sale transaction by completing payment while holding herself out as his wife. He asserted that having enjoyed benefits of the impugned agreements, the respondent cannot challenge their validity. He claimed that the parties herein cohabited as husband and wife, giving rise to a presumption of marriage, and further claimed that they are married under Gusii customary law. He maintained that the Small Claims Court lacked jurisdiction to determine issues of marriage, customary law, or matrimonial property, which issues form the basis of the dispute between the parties herein. Mr. King’oina contended that the additional evidence is necessary to enable the Court to reach a fair and just determination, failing which he will be denied a fair hearing. He asserted that the instant application has been brought without delay and that the respondent will not suffer prejudice in the event that the order being sought is granted, as she retains the opportunity to rebut the evidence.
4. In opposition to the application, the respondent filed a replying affidavit sworn on 23rd April 2025 by Ms. Laura Bagwasi, the respondent herein. She averred that the affidavit in support of the instant application is based on misrepresentations and material non-disclosure. She deposed that the Trial Court dismissed the appellant’s Preliminary Objection for lack of merits for reasons that the grounds raised therein were improper and did not meet the threshold of a Preliminary Objection. She asserted that the appellant elected to challenge the Court’s jurisdiction through a Preliminary Objection, which is confined to pure points of law, and cannot now introduce new factual evidence contrary to the principles governing Preliminary Objections.
5. Ms Bagwasi asserted that the Appeal specifically challenges the dismissal of the appellant’s Preliminary Objection and the appellant cannot use the instant application to cure the defects of his earlier procedural choice. She contended that the application herein improperly seeks to invite this Court, which is an appellate Court, to interrogate facts and exercise discretion on issues that should not have arisen within the context of a Preliminary Objection. She contended that entertaining the application herein would undermine the rule of law, delay the determination of the matter before the Small Claims Court and unjustly prejudice her by denying her property rights guaranteed under Article 40 of the Constitution.
6. In a rejoinder, the appellant filed a further affidavit sworn on 30th June 2025 by Mr. Friday Kinara King’oina, the appellant herein. He deposed that the respondent did not rebut the substantive merits of the application herein and maintained that the evidential records from the criminal matter are critical for a fair determination of this Appeal. He contended that the respondent’s denials are vague, evasive and fail to demonstrate any prejudice that would result from admitting the proposed evidence. He further asserted that the respondent did not provide any legal basis to justify excluding the evidence, rendering her opposition ineffective.
7. Mr. King’oina averred that the respondent’s replying affidavit improperly seeks to address the merits of the substantive appeal, whereas the application herein concerns only whether leave should be granted to introduce additional material evidence. He asserted that the evidence relates to issues already within the respondent’s knowledge. He reiterated that the Small Claims Court lacked jurisdiction to determine matters touching on the parties’ marital status and stated that once the proposed evidence is admitted, it will demonstrate that the Trial Court acted ultra vires. Mr. King’oina maintained that the additional evidence arises directly from the respondent’s conduct and is essential to the just resolution of this Appeal.
8. The application herein was canvassed by way of written submissions. The appellant’s submissions were filed on 9th July 2025 by the law firm of Sang Cherongis Law Advocates LLP, while the respondent’s submissions were filed on 13th August 2025 by the law firm of ROM Law Advocates, LLP.
9. Mr. Sang, learned Counsel for the appellant relied on the principles governing admission of additional evidence on Appeal as set out by the Supreme Court in the case of Mohamed Abdi Mohamed v Ahmed Abdullahi Mohamed & 3 others [2018] (Petition 7 and 9 of 2018) (Consolidated) KESC 62 (KLR), and submitted that the instant application satisfies the applicable criteria. He argued that the evidence sought to be introduced is directly relevant to the issues on Appeal, particularly the parties’ marital status and the characterization of the subject motor vehicles as matrimonial property. He contended that the proposed evidence would materially assist the Court in determining whether the Small Claims Court had jurisdiction to adjudicate matters that in his view, fall within the exclusive domain of matrimonial or family law.
10. It was stated by Counsel that the evidence sought to be introduced could not have been produced before the Small Claims Court because the events giving rise to it, including the respondent’s alleged unauthorized seizure of motor vehicle registration No. KCM 067W, her representations to third parties as his wife and the subsequent criminal complaint lodged by the third-party purchaser, arose after the filing of the suit before the Small Claims Court. He further stated that the criminal proceedings in the Kibera Criminal Case in which two witnesses stated that the parties herein transacted as a couple and in which the respondent is a state witness, generate material records that directly bear on the jurisdictional question. He maintained that the additional evidence removes vagueness, strengthens the grounds of Appeal and establishes a presumption of marriage relevant to determining whether the Trial Court acted ultra vires.
11. Ms Waithegeni, learned Counsel for the respondent submitted that the nature of this Appeal, arising from a Ruling on a preliminary point, does not permit the introduction of new evidence, since a Preliminary Objection must be founded strictly on pure points of law based on the assumption that all pleaded facts are correct. She stated that the Trial Court dismissed the appellant’s Preliminary Objection precisely because it invited factual inquiry into the parties’ alleged marital status, contrary to the principles articulated by the Court in the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] E.A. 696.
12. Counsel asserted that the appellant has not satisfied the statutory and judicial criteria for admission of additional evidence as provided for under Section 78 of the Civil Procedure Act, Order 42 Rules 27-29 of the Civil Procedure Rules, 2010, or the principles as set out by the Supreme Court in the case of Mohamed Abdi Mohamed v Ahmed Abdullahi Mohamed & 3 others (supra). She argued that the appellant has not shown that the lower Court declined to admit relevant evidence, that the appellate Court requires the evidence to pronounce its judgment, or that substantial cause exists to justify its introduction. She contended that given that the substantive issues before the Small Claims Court remain undetermined, the appellant retains the opportunity to raise any factual matters, including evidence of marriage or ownership, at the trial level through appropriate procedures.
13. In submitting that additional evidence on Appeal cannot be used to patch up deficiencies in a Preliminary Objection or delay proceedings, Ms Waithegeni referred to the case of Njenga v Ruto (Environment and Land Appeal E023 of 2023) [2025] KEELC 5334 (KLR). She cited the case of Reliance Bank Limited v Norlake Investments Limited [2002] 1 E.A. 227, and stated that dismissal of the instant application will not render this Appeal nugatory, as the appellant will still be able to canvass all factual issues before the Trial Court. She argued that the appellant cannot claim prejudice arising from the consequences of his own decision to proceed by way of a Preliminary Objection rather than presenting evidence.
ANALYSIS AND DETERMINATION.
14. I have considered the application herein, the grounds on the face of it and the affidavits filed in support thereof. I have also considered the replying affidavit by the respondent and the written submissions by Counsel for the appellant and the respondent. The issue that arises for determination is whether the instant application is merited.
15. The instant application seeks leave of the Court to allow the appellant to introduce additional evidence at the appellate stage. The appellate Court’s discretion to grant such leave is conferred by Section 78(1) of the Civil Procedure Act, which provides that –
1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power: -
a) To determine a case finally;
b) To remand a case;
c) To frame issues and refer them for trial;
d) To take additional evidence or to require the evidence to be taken.
16. The above provisions are further compounded by the provisions of Order 42 Rule 27 of the Civil Procedure Rules, 2010, which states that -
1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the court to which the appeal is preferred; but if –
a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; or
b) the court to which the appeal is preferred requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,
the court to which the appeal is preferred may allow such evidence or document to be produced, or witness to be examined.
2) Wherever additional evidence is allowed to be produced by the court to which the appeal is preferred the court shall record the reason for its admission.
17. In the oft cited Supreme Court case of Mohamed Abdi Mohamed v Ahmed Abdullahi Mohamed & 3 others (supra), the said Court set out the governing principles of allowing additional evidence as follows -
We therefore lay down the governing principles on allowing additional evidence in appellate courts in Kenya as follows:
a) The additional evidence must be directly relevant to the matter before the court and be in the interest of justice;
b) It must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive;
c) it is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;
d) Where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit;
e) The evidence must be credible in the sense that it is capable of belief;
f) The additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;
g) Whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process;
h) Where the additional evidence discloses a strong prima facie case of wilful deception of the Court;
i) The Court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The Court must find the further evidence needful.
j) A party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case.
k) The court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.
18. It is undisputed that this Appeal arises from the dismissal of the appellant’s Preliminary Objection by the Small Claims Court. It is trite law that in order for a Preliminary Objection to succeed, it should raise a pure point of law, it should be argued on the assumption that all the facts pleaded by the other side are correct, and it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. This position was affirmed by the Court of Appeal in the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (supra).
19. In determining whether this Appeal is merited, this Court shall ascertain whether the Trial Court correctly determined the legal issues raised in the appellant’s Preliminary Objection, which significantly narrows the relevance and admissibility of new factual evidence at the appellate stage. From the appellant’s replying and further affidavits, it is evident that he seeks to introduce evidence relating to the parties’ alleged marital relationship, cohabitation, presumption of marriage and the respondent’s conduct in criminal proceedings. He contended that this material is necessary to show that the dispute between the parties herein involved questions of matrimonial property and marital status that the Small Claims Court lacked jurisdiction to entertain.
20. The record however shows that the appellant opted to raise the issue of jurisdiction through a Preliminary Objection, which must be argued and determined on undisputed facts. The jurisdictional question before the Trial Court, and now before this Court on Appeal, is therefore limited to whether the Small Claims Court lacked jurisdiction based on the facts as pleaded and the applicable law, not on new evidence that was not before the Trial Court. Introducing new factual issues at this stage would effectively convert a jurisdictional objection into a factual inquiry, contrary to established principles governing Preliminary Objections.
21. In addition, it is trite law that pursuant to the provisions of the Small Claims Court Act, Appeals from decisions of the Small Claims Court to the High Court are on matters of law.
22. This Court notes that the appellant has also not demonstrated that the evidence sought to be introduced could not, with reasonable diligence, have been obtained earlier. The said evidence which includes witness statements from criminal proceedings, allegations of cohabitation and issues concerning the sale of the motor vehicle relates to facts which were well within the appellant’s knowledge prior to arguing the Preliminary Objection at the Small Claims Court. It is my finding that granting the orders being sought herein would prejudice the respondent by requiring this Court to consider contested factual matters that were neither before nor determined by the Trial Court, thereby transforming an Appeal on a point of law into a de facto rehearing of the merits, contrary to the provisions of Order 42 Rule 27 of the Civil Procedure Rules, 2010, and the procedural mandate of appellate Courts.
23. This Court finds that whether the parties herein were married or cohabiting, or whether the respondent benefited from the motor vehicle sale, are matters of factual controversy, thus they cannot be admitted as additional evidence on Appeal against the dismissal of a Preliminary Objection. This Court further finds that even if the said evidence was to be admitted, it would have no probative value in this Appeal, which concerns only the dismissal of the Preliminary Objection and is governed by the Small Claims Court Act.
24. This Court is satisfied that the appellant has not met the stringent threshold for admission of additional evidence on Appeal.
25. The upshot is that the instant application is not merited and it is hereby dismissed with costs to the respondent.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 14th day of November 2025. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:-
Mr. Kipkemoi Sang for the applicant/appellant
Ms Daisy for respondent
Ms B. Wokabi – Court Assistant.
'