(An appeal from the judgment and decree of the Small Claims Court at Nairobi (V.M. Mochache, RM/Adjudicator) delivered on 8th March 2024 in SCCCOMM No. E5931 of 2023)
1. This is a ruling on a preliminary objection dated 24th April 2024 filed by the 2nd respondent. The preliminary objection is that the appeal does not comply with the provisions of section 38 of the Small Claims Court Act since all the five grounds of appeal referred by the appellant in its memorandum of appeal dated 8th April 2024 are issues of fact.
2. To support the preliminary objection the 2nd respondent filed its submissions dated 12th November 2024. They made reference to the cases of Wachira v Mwai (Civil Appeal E022 of 2023) and Amunga v Muisu (Civil Appeal E725 of 2022) and urged that the memorandum of appeal is argumentative, baseless, frivolous and lacks standing according to section 38 of the Small Claims Court Act. They urged the court not to give the appellant an ear in canvassing such a Memorandum of Appeal.
3. The 2nd respondent, relying upon the provision of section 27 of the Civil Procedure Act and the case of Haraf Traders Limited v Narok County Government [2022]eKLR, also urged the court to grant it costs.
4. Before delving into the preliminary objection, this court notes that this matter came up before court first on the 2nd October 2024 when none of the parties was present and the court directed that a mention notice issues for the 14th October 2024. On the 14th October 2024 counsel for the 2nd respondent was present and informed court that parties had been served with the Record of Appeal. The court then proceeded to direct parties to file their submissions within 14 days for highlighting on 13th November 2024.
5. Subsequently, on the 13th November 2024 the appellant was not present and counsel for the 2nd respondent informed court that they had filed a preliminary objection dated 22nd April 2024 together with submissions. Counsel further informed the court that no record of appeal had been filed and the period for filing the record of appeal had lapsed. In addition, he stated that the appellant had not filed submissions hence the preliminary objection should be allowed as it remained uncontested. He prayed that the appeal be dismissed with costs.
6. I take serious exception to the contradictory information placed before the court by counsel for the 2nd respondent, whereby on 14th October 2024 he informed the court that they were served with the Record of Appeal and later on the 13th November 2024, he informed the court that no record of appeal has been filed and the time for filing the record of appeal has since lapsed. As an officer of the court, counsel was expected to be truthfull, act with honesty, diligence and professionalism as they serve as stewards of justice.
7. Consequently, I have taken the liberty to peruse the Court Tracking System and the court record, I do note that first, the Record of Appeal has not been filed. I also note that this appeal has not been admitted for hearing and directions on how it should be disposed have not been issued.
8. Besides, while still on the Case Tracking System, I have also perused the affidavit of service sworn on 13th November 2024 by D.D. Kalii and filed by the 2nd respondent and do not that the same is with regard to only service of the 2nd respondent submissions. There is no evidence that the Preliminary Objection and/or the Notice for the hearing date were ever served upon the appellant. Clearly, from the record, the appellant was not aware of the events and occurrences that proceeded in this matter.
9. Be that as it may , for a party to succeed on a preliminary issue as to warrant the striking out of an appeal, it must be demonstrated that the objection raises pure points of law or facts pleaded that are not contested by either party. In this instance, the grounds of appeal contained in the memorandum of appeal dated 8th April 2024 are reproduced here verbatim as follows;
a. The learned trial adjudicator/magistrate erred in law and in fact in allowing herself to be overly/solely influenced in her decision by extraneous considerations;
b. The learned trial adjudicator/magistrate erred in law and fact and wrongly exercised her discretion by failing to consider and to give due weight and import to relevant material/documentary evidence on record, much to the prejudice of the appellant;
c. The learned trial adjudicator/magistrate erred in law and in fact in finding/holding that the appellant is liable to fully or at all indemnify the 2nd respondent;
d. The learned trial adjudicator/magistrate erred in law and in fact and wrongly exercised discretion by failing to properly or at all consider the circumstances of the matter vis-à-vis the status of the appellant as an agent of the 2nd respondent;
e. The learned trial adjudicator/magistrate erred in law and in fact by finding in favor of the 2nd respondent against the weight of the evidence and awarding costs of the suit against the appellant third party to the 2nd respondent.
10. In this case, the appellant and the 1st respondent have not filed any response. However, that does not automatically mean that the preliminary objection is merited on the face of it. I am therefore duty bound to determine the same on its merits on the basis that a preliminary objection raises a pure matter of law without having recourse to contested evidence.
11. According to the 2nd respondent, the grounds raised in the memorandum of appeal violate the provisions of section 38 of the Small Claims Court Act which provides as follows:
“(1) A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.
(2) An appeal from any decision or order referred to in subsection (1) shall be final.”
12. It is apparent that the drafters of this legislation intended that not all matters from the Small Claims Court would proceed to appeal. Appeals were only limited to issues of law.
13. In this case, the appellant raises five grounds of appeal which challenge the findings of the learned magistrate/adjudicator on a point of fact and law. In my view, the appellant, despite making reference to issues of fact, has raised points of law that would require the inquiry before this court as to determine those points on their merits. It would also be premature to dismiss the suit at this juncture when the appellant has not been given an opportunity to exposit those grounds demonstrating the points of law that shall be raised at the hearing of the appeal.
14. The 2nd respondent further informed the court that since the appellant had not filed its written submissions in respect to the appeal, then it could be deduced that the appellant was not interested in prosecuting the appeal. However, the appeal has neither been admitted for hearing nor directions as to disposal the appeal taken. Thus, to allow the orders sought in the preliminary objection at this juncture would be injudicious and draconian particularly when it remains in doubt that the appellant was served.
15. Consequently, I find no merit in the preliminary objection dated 22nd April 2024. Since the appellants did not participate in its prosecution, the same is dismissed but with no orders as to costs.
It is so ordered.
Delivered, Dated and Signed this 24th day of January 2025